The SRC Report: Comcare Decisions – An In-depth Analysis of Agency Appeals

Welcome everybody to The SRC Report. I'm Athena Cains, principal at McInnes Wilson, and today I'm joined by Abe Ghaleb from our Sydney office, also a principal in our team. Welcome, Abe.

Thanks Athena.

You've heard from Abe many times on The SRC Report, but today what we wanted to talk about was agency appeals. And agency appeals are when an agency takes a decision to appeal one of Comcare's decisions in the Administrative Appeals Tribunal. It's something that happens probably more frequently than you might think, but certainly an avenue of appeal that's available to employers that probably isn't available, I would say, in most, in any other workers' compensation jurisdiction.

So we wanted to talk today about the kind of considerations an employer and a commonwealth agency might consider in deciding whether or not to appeal a decision that Comcare has made and with which they don't agree. And this is a follow on conversation to the conversation that we had in the last SRC Report with Yas Tiry about model litigant obligations in agency appeals. So well worth listening to that as well, as an adjunct to this conversation. So as we know, Comcare makes many decisions and quite a lot of those decisions are appealable in the Administrative Appeals Tribunal. The people who have standing, in the very broad sense, to appeal those decisions are the employee of course, if they don't agree with Comcare's decision, but also the agency, the rehabilitation agency, or the liable agency. And generally speaking, those decisions would be initial liability decision or decisions regarding incapacity, I would say.

So I just wanted to quickly talk about some of the factors that an agency might consider before launching an appeal. There are two reasons, in my view, why an agency may wish to appeal a decision of Comcare, and obviously that's based on the belief that that decision is wrong. But more than that, there needs to be a premium management approach that the agency's view is that decision is wrong and that decision is going to have a significant impact or certainly an impact on premium, either in this case or in other cases moving forward. And the second reason needs to be ... and in taking that decision, I should say, in making that decision, there needs to be due consideration given to the employee and the effect an agency appeal will have on the rehabilitation of that employee. Because as we've talked about time and time again, the first consideration in managing an agency's premium in a workers' compensation claim is how quickly and how efficiently you can support that employee in getting back to work.

Yeah, I agree. Really, the second issue that you've raised where you're saying an agency is a appealing a decision because of this particular employee circumstances, I think really needs to be given proper consideration by the agency itself. We both know that workers' compensation is very often a highly charged area of law, but these kind of matters have a particularly sharp edge because where an agency is seeking an appeal is obviously the employment relationship which is being affected, and hopefully not to a great degree, but I think pragmatically and realistically it is going to be affected in some way with that worker. And in that sense, at least from my perspective, what I think an agency really needs to do when it's taking into account whether it's going to lodge an appeal and something you've already touched upon, is is this decision only affecting this particular employee? Because if it is, maybe that's not the best reason that you would want to do this.

That being said, where it's affecting premiums, where it's going to affect a cohort of people, where you can envisage that this is going to come up again and again for that employee agency, that's a much stronger reason to do it because, this isn't the right word for it, but it's almost like it's a policy decision that you would say, "No, no, we need to take a stand on this and we need to figure out how we're dealing with it in the future." So I think you were looking for a fight, you're not going to get it from me, I think what you said is particularly right.

There's two things that you should really have at the forefront of your mind because these appeals are different from the norm. Like you said, I think we are one of, we must be the only jurisdiction as far as I'm aware that an employee agency can kind of take this avenue of appeal. Where what happens is you've got the insurer, so Comcare in the mix, you've got an agency and you've got the employee and all three become parties to the proceedings. It it's highly unusual, but becoming more frequent. Certainly we're seeing it a lot more in our practice.

Which I think agency appeals a very fact specific, they're very employee specific and they're premium specific. So those are certainly conversations that you would have based on each matter. So what we thought we might then cover, after just going over that, is what happens in an agency appeal. Because as we've said, I mean, they're becoming more frequent, and they're more common than you think, but most people have probably not come across them. So what happens in an agency appeal is it's actually the agency who puts in the application for review, and those templates exist on the AAT website, and I think there's a template for an organization. So you use a slightly different template than an employee or a worker would use to apply for a review of one of Comcare's decisions. But apart from that, it's very similar, the form is very similar and requires you to state your grounds for appeal, which I think should be detailed enough that Comcare and the employee understand where your problems with that decision, the decision you're appealing is and attached the reviewable decision.

And that gets sent to the AAT in their usual way, and information about that is on the AATs website. When that's received and processed by the AAT, they'll send out their notice of application to the employee, to you as the agency and to Comcare. And then Comcare's role is to make the T documents. And I think Abe's going to take over here about ... so we've got the T documents, Comcare files the T documents, and then we have our first conference. And Abe, do you want to explain what each party's role is in that conference and in the matter proceeding?

Yeah, sure. So what you might think is that because Comcare is the one who's made the decision and because the agency is the one who is appealing that decision, that it really becomes a bit of a battle between the agency and Comcare as to who is right and who is wrong. But in fact, that's actually not what occurs. What I might do is give you a bit of a lawyer response first about what the Hardiman principle is and then break it down a little bit. So what the Hardiman principle deals with is the extent to which an administrative decision maker can act as a contradictor in proceedings which challenge their decisions. And the principle comes from a high court decision in 1980, from which its name derives. So in that case, the high court was dealing with a dispute involving the Australian Broadcasting Tribunal and the high court said, look, essentially it would be the usual course for the tribunal to do is to submit to the orders of the court and not what the broadcasting tribunal did in that case, which was really become a protagonist in the proceedings.

They sought to defend their decision, they sought to get evidence about it, they made submissions on it. And the reason why the court said what you shouldn't do, you shouldn't become a protagonist, is because it endangers then the impartiality. So that in fact means what the agency is going to do with this type of appeal is be going head to head with its employee. And you can see why that could be a difficult situation. Whilst at the same time, the agency is probably trying to deal with rehabilitation of that employee, they're trying to maintain the employment relationship and they're trying to get to the bottom of this workers' compensation claim also. And in that sense, it's a pretty delicate balance which needs to take place.

Absolutely. Which is why there does need to be consideration beyond the mere legal grounds for an appeal, in making an appeal, in my view.

Yes

When an agency makes an appeal. And I think probably ... so that's a bit of information about the practicalities, the matter will then proceed as basically a contest between the agency and the employee, with Comcare taking an important role, but not a contesting role, if that makes sense. And I think another interesting fact about agency appeals that people may not know, is that the employee themselves, should they choose to be legally represented, the reasonable legal costs of their representation will be paid for, and they will be paid by the agency, if the agency doesn't get a better, or in their view, a better decision for them than what Comcare's decision is. But if the agency succeeds in their appeal, then the employee's legal costs are covered by Comcare.

So in that sense, whilst the employee themselves, there's obviously a lot of, as Abe said, this is a highly charged environment and I think an agency appeal only makes that more charged between the agency and the employee. There is at least some silver lining for employees in that they can get their reasonable legal costs, which is of course not necessarily all of their legal costs, paid for regardless of the outcome of the AAT, of the agency's appeal. So I think that's all from us on agency appeals, Abe, I mean, there's a lot to talk about. Probably something that we'd talk to separate agencies on if they needed to.

And do you have any thoughts about how the agency should deal with their employees at the time that they are going through AAY appeal? Again, like we've discussed, this is a really highly charged situation and there is that balancing act that the agency needs to undertake.

I agree. It's a very delicate situation and I think the answer to that probably in large respect depends on the outcome the agency is seeking. But I think it would be important that the rehabilitation case manager be kept very separate from the AAT proceeding and that instructions that are obtained in relation to that ATT proceeding are probably kept at a high level. So you would be looking at, I would think at least a director level, potentially a branch head level as the instructor of the AAT proceedings and that there be the legal, obviously in-house legal team involved and preferably an external law firm as well involved, just to keep that separation, and I think that independence from the employee. But that employee certainly does need support.

They need to understand, I think, in detail the motivation to the agency appeal and where it's appropriate to share with that employee, that could be helpful because I'm always of the view that knowledge is comforting to employees when they're going through quite uncertain thing. Then I think an agency appeal or any kind of, if they take an appeal for a Comcare decisions, obviously very uncertain and can be quite traumatic and of concern to that employee. So I guess the answer to that is there's lots of different things agencies could do.

Yeah, I echo those comments and I think that they're really good suggestions. I agree, I think letting the employee know, particularly at the outset, this is not a conversation to have later in the piece. It is right at the beginning as quickly as you can say, "This is the way the agency thinks about the matter. This is why we are taking the steps that we are." And then making it as clear as possible to say, "But what we are going to do is separate that as much as possible from your employment and from your rehabilitation." And really hopefully get it into the employee's minds that these are two separate things. The rehab and the support and the employment relationship is still there, but this is an AAT matter for which, for whatever reason, the agency considers it appropriate to proceed with.

And I think say if you have initial liability accepted by Comcare and the agency appeals that, and that initial liability is revoked by the tribunal or through the process, then there will clearly be some concerns by that employee about overpayments and things like that. So it would be very useful for the agency to potentially talk to Comcare about how that might be dealt with or how the agency might be able to deal with that in a way that doesn't, I guess, penalize the employee for being stuck in the middle of that dispute.

Almost not, and I would say that in my experience, almost without exception, employees are not misleading anybody in these decisions. And so it's almost they're just stuck in the middle of this. And I think that's the consideration as well for agencies to think, okay, if I was this employee, what would I be concerned about? And is there anything I can do within the context of our policies, our early intervention, obviously all in accordance with various acts that Commonwealth agencies are bound by, but is there something we can do to just reassure this employee that this appeal will not make them worse off, if that is at all possible to do.

Yeah, of course. And look, we're always concerned about people's mental health. We should never forget, EAP is there for a reason, always encourage people to use it.

really interesting discussion about an almost arcane area of the SRC Act, but like we said, maybe less arcane than it was a few years ago. As always, thank you for joining us. Please do have a lookout for our law flicks McInnes Wilson's bespoke CLE on demand program, and Abe and I will certainly catch up with you again soon on The SRC Report. Thank you for having us.