External

13.It is Comcare's policy position that a 'claim' as referred to in section 58 is any claim for benefits under the SRC Act., including a claim for ongoing entitlements after a determination to cease that entitlement.  It is Comcare's view that the definition of 'claim' is not limited to an initial claim for liability.  _This interpretation is consistent with policy in relation to section 57.


14.Therefore, section 58 may be used where Comcare has received a claim for initial liability, subsequent benefits or a reconsideration request, and where Comcare is satisfied that the claimant has information or a document that is relevant to the claim or may obtain such a document without unreasonable expense or inconvenience.

15.Section 58 may not be used to 'fish' for information Comcare is not sure exists or where Comcare is not sure that the claimant has, or has access to, the information.  Comcare must be reasonably satisfied that the information or document exists and is relevant to the claim before it is requested.  The Information Privacy Principles of the Privacy Act must be observed in requesting relevant information.

16.Comcare must document on file the reasons it is satisfied that the claimant has the information or document or can obtain it/them without unreasonable expense or inconvenience.

17.Comcare must use its section 58 powers sparingly and should only be used where Comcare has been unable to identify any other reasonable means of obtaining the information.  In the normal course of events, it is often more practical to seek an authorisation from the claimant to seek the information directly (particularly in the case of a medical report).  Section 58 may be used to request the claimant to complete a Medical Release Authority for this purpose.

18.The initial request for a document or information should be made by letter to the claimant.  If a satisfactory response is not received then a formal notice under section 58 may then be issued.  The section 58 notice should specify a period of not less than 28 days for the employee to comply.  A section 58 notice must not be used as a first resort.

19.If the claimant requests an extension of time to comply, this request should be judged on its merits.  In most circumstances, the request should be granted.

'Reasonable excuse'

20.Where the claimant refuses to comply or does not respond, and has not provided reasons, he or she must be provided with a fair opportunity to provide reasons for the failure to comply.  A letter requesting this information should be sent and the claimant provided with a reasonable period (7 to 14 days) to respond.  If the claimant fails to respond, action can be taken to refuse to deal with the claim (see below).


21.Where the claimant has failed to comply with the notice but has provided reasons, these must be assessed to establish whether or not they constitute a 'reasonable excuse' (s.58(3)).

22.What constitutes a reasonable excuse will vary from case to case but will usually fall into one of the following categories:

  • the information or document which has been requested does not exist;

  • the claimant is not able to obtain the information (for example, a claimant's doctor refuses to provide a report or medical records);

  • the employee's medical condition precludes him or her from obtaining the required information;

  • costs associated with obtaining the information cannot be met by the employee;

  • the employee disputes the relevance of the documentation to his or her compensation claim, and is able to provide reasons to justify this;

  • the employee does not wish to be involved with obtaining the requested evidence and prefers that it be obtained directly by Comcare from its source (such an issue would need to be considered carefully); or

  • the employee did not receive the notice in time to comply with the request.

23.Any reasons for failure to comply with the section 58 request must be considered carefully and, if necessary, clarification or further information requested.

Examples

  • A claimant has lodged a claim under the Act, but the information on the claim form is too brief to understand what occurred.  It may not be reasonable for the claimant to refuse to provide a more detailed statement fully describing the claimed incident.

  • Where the claimant may obtain a statutory document from a State Government Department, e.g. birth certificate, it may not be reasonable for him or her to  refuse to do so.


24.Where the claimant has failed to comply with the notice and has not provided a reasonable excuse, Comcare can refuse to deal further with the claim until the notice is complied with.  In the case of an undetermined claim, this will mean that liability cannot be found and no benefits will be paid.  In determining whether to refuse to deal with a claim, the importance of the information or document must be  balanced against the consequences of refusing to deal further with the claim, particularly if this means the withholding of a benefit.

25.A letter should be sent notifying the claimant and employer of this decision.  The letter needs to make it clear that action on the claim will recommence once the notice is complied with.

26.In cases involving subsequent benefit claims, refusal to deal with a claim will in fact work to the claimant's advantage.  For example, if a claimant is in receipt of ongoing incapacity benefits and refuses to complete a review form, refusal to deal with the claim will result in benefits continuing to be paid.  In situations such as these it may be necessary to issue a formal determination ceasing payments.  This will not be a decision under section 58, nor will section 66 be able to be used if the matter were to go to the AAT.  In such a case it would be better to send the review form shortly before the expiration of the determined period of benefits.

27.When an employee whose claim has been refused to be dealt with complies with the section 58 notice, any amounts of compensation that have been withheld become payable in full.

28.In the event of an appeal to the AAT, where a document or information requested under section 58 has not been provided and there is no reasonable excuse, Comcare may apply for inadmissibility of that document or information in accordance with Section 66.  If the document or information is used to assist the claimant successfully appeal a decision made by Comcare, Comcare may make a declaration in regard to the Tribunal not awarding costs under Section 67 of the Act.

29.Refusal to deal with a claim under Section 58 does not constitute a determination under Section 60 of the Act, and therefore is not subject to reconsideration or subsequent review by the AAT.  The claimant can, however, ask for the case to be reviewed under the AD(JR) Act.  Such reviews are undertaken by the Federal Court.


Using section 58 to obtain medical reports

30.Section 58 cannot be used to request medical reports from a doctor.  Nor should a section 58 notice be sent to a claimant to ask him or her to obtain a report from a doctor, because the doctor's refusal would constitute a reasonable excuse under section 58.  Unless Comcare has reason to believe a claimant has possession of a specific medical report, use of section 58 is not appropriate.  Instead, where a claimant's doctor will not provide a report, the opinion of an independent specialist should be sought.

Non-compliant new claims

31.In a case where a claim lodged does not substantially comply with the Act (Section 4 and Section 53), Section 58 is not appropriate to request documents to attain substantial compliance with the requirements of the Act, as a valid claim has not yet been received.