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Appealing to the Administrative Appeals Tribunal

For: Claimants Employers and managers Advocates

The Administrative Appeals Tribunal (AAT) can undertake an independent merits review of a reviewable decision made under the Safety, Rehabilitation and Compensation Act 1988.

Tribunal functions

The Administrative Appeals Tribunal (AAT) is an independent body that reviews a wide range of administrative decisions made by Australian Government ministers, departments and agencies.

Regarding claims, the AAT:

  • looks at the evidence on your claim and decides whether a correct decision has been made
  • has powers that the claims manager does not have, such as the power to summons medical records or to require a person to give evidence.

For more information on the role of the tribunal visit Administrative Appeals Tribunal (AAT).

For more information on Workers Compensation matters and the role of the AAT, please refer to the Guide to the Workers' Compensation Jurisdiction available on the AAT website.

When you can appeal

If you are not satisfied with a determination that your claims manager has made on your claim, you should first ask for a reconsideration of the determination. This review is undertaken by an independent review officer who works in a different area than your claims manager.

If you are dissatisfied with the decision by the independent review officer, you can apply to the AAT to have the decision reviewed.

The time limit to apply for a review by the AAT is 60 days after you are given notice of the decision.

The appeals process

Legal representation

You do not need to have legal representation at the AAT. However, other parties may be represented by a lawyer at the AAT. If you would like the assistance of a lawyer you can contact the Law Society in your state or territory.

If your claim is managed by Comcare, Comcare is represented by a lawyer from our internal team or from an external law firm.

Pre-hearing

The process normally includes:

  • A preliminary conference. This is run by an AAT Conference Registrar and both parties participate by appearing in person, or by remote access technology (like MS Teams or telephone).  Conferences are the central component of the AAT’s pre-hearing case management process. They provide the opportunity to determine where the matter is up to. This includes determining if more medical or factual information is needed, and whether the parties are ready to progress to a conciliation conference or hearing.
  • Tribunal summonses. Parties can each ask the AAT to issue a summons on a third party to produce records relevant to the matter. These are usually medical or employment records.
  • Statements and further information. The AAT may direct the parties to provide additional information relevant to the matter.
  • Conciliation conference. This is a more formal conference designed to help the parties either resolve the matter or agree on the issues which need to be determined by the AAT at a hearing.

Not all of these steps occur in every case.

Hearing

If an agreement can’t be reached about the outcome of your case during the pre-hearing process, it proceeds to a hearing in the AAT.

A hearing usually involves you giving evidence.

It may also include evidence from medical practitioners, your employer and other witnesses.

Decision of the Administrative Appeals Tribunal

The AAT can make a decision by consent or after hearing your case. It can decide to:

  • affirm the decision, which means the decision made by the review officer does not change
  • vary the decision, which means the decision made by the review officer is changed or altered in some way
  • set aside the decision, which means that the decision made by the review officer is changed in part or full, or
  • send a decision back to the review officer to make a new decision.

When the AAT makes a decision after a hearing, you or Comcare may appeal to the Federal Court on a question of law within 28 days of receiving the decision.

Implementing Administrative Appeals Tribunal decisions

The following information will assist injured employees in having their Administrative Appeals Tribunal (AAT) decision implemented as quickly and efficiently as possible.

Implementing AAT decisions can be complex and involves gathering information from multiple sources including yourself, your employer, medical practitioners, superannuation funds and other Australian Government agencies.

Your Claims Manager or your legal representative can help you with the below process.

Getting started—required information

Before Comcare can fully implement an AAT outcome, you will need to provide some, or all of the information following:

Only if claiming compensation for medical treatment, household services or attendant care:

  • Copies of any receipts or invoices for medical treatment and services received for related compensable condition/s
  • Medicare History statement (for medical treatment and services related to the compensable condition/s). Comcare will request this, Medicare will then send this to you to complete.

Only if claiming permanent impairment compensation:

Only if claiming incapacity compensation:

Comcare will also need information from the Agency which employed you at the time of your injury including:

  • Normal Weekly Earnings. Comcare needs to confirm your normal weekly earnings before you were injured
  • Confirmation of any leave taken attributable to your compensable condition/s
  • Cessation of Employment form (PDF, 76.5 KB) (if you are no longer employed with the Agency).

Each of the items above are explained further below, including who provides which information and forms to Comcare. Remember, depending on your circumstance, you may not need to complete all of the above items.

Download the information sheet and use the checklist (PDF, 111.4 KB) to help you get started.

Incapacity payments

The following steps need to be taken before Comcare can determine and process any compensation for incapacity.

Claims for Time Off Work

If you are still employed with the Agency

  • You need to submit the Claim for Time Off Work online form for the claimed period/s and a medical certificate (see below) in order to receive payment.
  • The Agency will pay you directly and Comcare will reimburse the Agency for the period/s when you took time off from work as a result of your compensable condition.

If you are no longer employed with the Agency

Medical certificate

You must provide medical evidence showing you were incapacitated due to your compensable condition for the period claimed.

  • Medical evidence is usually provided in a medical certificate completed by a legally qualified medical practitioner and needs to include certain information to help us assess your claim in a timely way.
  • You are encouraged to complete the certificate of capacity (PDF, 450.1 KB) which is Comcare’s preferred medical certificate. Other types are accepted.

Read more about medical evidence and what information is required.

Confirmation of your normal weekly earnings

Incapacity payments are determined using your normal weekly earnings—an amount that fairly represents what you would have earned in a week if you had not become injured or unwell.

Your normal weekly earnings is calculated based on your salary before the date of injury and may include overtime and allowances for the relevant period—usually two weeks before your injury.

Who provides Comcare your normal weekly earnings?
You are not required to do anything in determining your normal weekly earnings. This step is managed by Comcare and your Agency.

Comcare determines your normal weekly earnings based on the information provided by your Agency. Your Claims Manager will advise you of your initial normal weekly earnings figure.

You will be notified in writing of any changes to your normal weekly earnings, such as salary increases or decreases you would have received had you not been injured. This includes pay increases awarded through your agency’s Enterprise Agreement.

You can discuss any queries about your normal weekly earnings with your Claims Manager.

Read more about Scheme guidance - Calculating normal weekly earnings | Comcare.

Access to other forms of income support

There are rules and processes that apply to accrued leave, superannuation and Centrelink payments.

Accrued Leave
You are not required to do anything in relation to your accrued leave. Your Agency is responsible for completing this step.

Sick leave, recreation leave and long service leave cannot be taken at the same time as receiving incapacity compensation. If you have used this leave while you were incapacitated, your Agency will:

  • Reverse the leave; or
  • Deduct amounts from your incapacity compensation as reimbursement.

You will then receive the balance of any compensation payable for incapacity to work.

Superannuation
If you have received any superannuation payments, Comcare needs to request information directly from your superannuation fund/s.

Centrelink
If you have accessed Centrelink payments for periods that you were incapacitated because of your compensable condition, Comcare is required under the Social Security Act 1991 to reimburse Centrelink for these payments.

Comcare will request a Recovery Notice from Centrelink.

  • Where a debt to Centrelink is owing, Comcare will deduct this amount from your incapacity compensation and pay it directly to Centrelink.
  • Any remaining incapacity compensation will be paid to you either by the Agency or by Comcare directly, depending on the circumstances.

Important note: Comcare will request information from your superannuation fund/s and Centrelink as soon as possible. However, it can take many weeks for your fund/s or Centrelink to respond.

What if I have not accessed my superannuation or Centrelink?
Before Comcare can implement your AAT outcome, we will ask you to confirm in writing that you have not accessed superannuation or Centrelink. We will contact you via phone or email to discuss what is required.

Medical expenses

Comcare requires the following information before determining and processing any payments or reimbursements for medical services.

Medical information
You must provide medical information such as medical certificate/s, reports or other documents provided by a legally qualified medical practitioner showing that the claimed treatment was obtained in relation to your compensable condition/s. You can provide this information through to your Claims Manager with a Medical Services claim form and/or Claim for Time Off Work information, or at any other time during the AAT process.

Read more about medical evidence and what information is required.

Medical services claims
You must send the original or a copy of any receipts or invoices for medical treatment expenses obtained in relation to your compensable condition.

You can do this by:

Either way is fine—choose what is easiest for you.

You can learn more about medical expenses below or you can read about our rates for medical and allied health treatment.

Services claimed through Medicare and/or private health insurance

Medicare
Comcare is required by the Health and Other Services (Compensation) Act 1995 to reimburse Medicare for all amounts it has paid you for medical treatment obtained in relation to your compensable condition/s before paying any compensation for medical expenses.

What Comcare and Medicare will do:

  • Comcare will request information from Medicare to check if any reimbursement is required where you may have claimed some services related to the compensable condition through Medicare
  • Medicare will then send you a history statement to review and once returned to them, will notify Comcare of any amounts requiring reimbursement
  • Comcare will reimburse Medicare before paying any remaining invoices and/or receipts to either you or the provider (if the service has not already been paid)
  • Medicare notices have an expiry date, so Comcare may need to seek an updated notice from Medicare to process any entitlements.

What you will need to do:

  • Review the Medicare History statement once received and identify any items that relate to your compensable condition/s
  • The sooner you return your Medicare History statement to Medicare, the faster they can review your case and notify Comcare of any recoverable amounts.

Important note: Obtaining clearance from Medicare can take up to three months.

Please send your completed history statement to Medicare as soon as possible. Please also let Comcare know when you have completed these steps so we can help follow up a response with Medicare.

Private health insurance/Department of Veterans Affairs (DVA) benefits
If you have claimed private health insurance or received DVA benefits, Comcare will require a statement of claims from your health fund or DVA identifying which services are related to your compensable condition/s.

You will be able to request this information from your health fund or DVA. In some instances, you may be able to download the relevant information yourself.

We will work with you to reimburse any costs to your fund.

Scheduled medical and allied health rates and gap payments

Comcare has set payment rates for medical and allied health treatment expenses based on fees recommended by various professional associations and other Australian workers’ compensation jurisdictions.

If your medical provider charges more than Comcare’s set rates you may not be reimbursed the full amount charged. In exceptional circumstances, Comcare may reimburse more than its stated limit. You can discuss this with your Claims Manager.

Permanent impairment and non-economic loss claims

If the AAT has decided that you are entitled to a permanent impairment and non-economic loss compensation payment, the following steps need to be taken before payments are provided:

  • Comcare is required by the Health and Other Services (Compensation) Act 1995 to notify Medicare in writing within 28 days where a claim for permanent impairment is accepted for $5000 or more.
  • If you have not claimed any benefits from Medicare, you will be asked to complete the Medicare Compensation Recovery Section 23A Statement form and declare that you received no Medicare benefits or received no further benefits since your most recent notice expired, for you compensable injury or illness.
  • You need to return the Section 23A Statement form to Comcare within 7 days to give Comcare sufficient time to request the information directly from Medicare and help expedite the payment process.
  • Comcare lodges the Section 23A Statement with Medicare.
  • Medicare will notify Comcare of any reimbursements owed to Medicare.
  • Comcare will reimburse Medicare before paying you any remaining compensation amount payable to you in line with the AAT outcome. Where the amount owed to Medicare is more than 10% of the amount you were awarded for your permanent impairment, you will be required to pay Medicare the additional amount above the 10%. However, if the amount owed is less than 10%, Medicare will refund you the difference directly.
  • If Section 23A Statement is not completed, Comcare may issue up to 90% of the agreed payment to you (or your legal representative with your appropriate authorisation) as an advance payment with the remaining 10% being paid to Medicare to hold until a current Medicare notice has been issued.

More information

Page last reviewed: 03 August 2022
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Comcare
GPO Box 9905, Canberra, ACT 2601
1300 366 979 | www.comcare.gov.au

Date printed 10 Dec 2022

https://www.comcare.gov.au/claims/disagree-determination/appeal-to-aat