Version 1.0
December 2009
The MRCC Reconsiderations and Appeals Handbook contains the following chapters:
Part VI of the Safety, Rehabilitation and Compensation Act 1988 (SRCA) provides for 'Reconsideration and Review of Determinations'.
'Reconsideration' is a process whereby the Military Rehabilitation and Compensation Commission (MRCC) carries out an internal review of a decision made under the provisions of the SRC Act.
'Review' is a process whereby a decision made following a reconsideration can be reviewed by the Administrative Appeals Tribunal (AAT).
The purpose of both Reconsiderations and Reviews is to ensure that the correct decision is reached. It is not a matter of defending the original, or reconsidered decision. Often, further evidence comes to light that enables a Delegate to come to a different view than was previously held. That is not to say that the original decision was wrong, but rather that a different decision can now be made.
This is particularly so in the Administrative Appeals Tribunal (AAT) where it is the role of the Department to put all evidence before the Tribunal to allow a correct decision to be reached.
At the date of writing, reconsiderations are carried out in only two offices of the Military Rehabilitation and Compensation Commission (MRCC); the MRCC's National Office in Canberra and the MRCC's Brisbane office. Please forward all requests for reconsideration for clients living in VIC, NSW, TAS, ACT and WA to brisbanerecons@dva.gov.au [5]
Section 62 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) is the part of the Act which provides for reconsideration of determinations made, in the context, by delegates who work with the MRCC. For the purposes of the SRC Act, the MRCC is a 'determining authority'. Section 62 actually reads:
62 (1) A determining authority may, on its own motion:
a) reconsider a determination made by it, or
b) cause such a determination to be reconsidered by a person to whom its power under this section is delegated, being a person other than the person who made, or was involved in the making of the determination, whether or not a proceeding has been instituted or completed under this part in respect of a reviewable decision made in relation to that determination.
Section 62 of the SRC Act also provides that:
Section 38 of the SRC Act is very similar to Section 62. The main difference is that Section 38 relates to decisions concerning rehabilitation matters arising under the Act in individual cases.
Not all determination are open to reconsideration under the SRC Act. Subsection 60(1) states that; 'a 'determination' means a determination, decision or requirement made under Section 8, 14, 15, 16, 17, 18, 19, 20, 21, 21A, 22, 24, 25, 27, 29, 30, 31, 34, 36, 37 or 39, under paragraph 114B(5)(a) or under Division 3 of Part X'.
A request for reconsideration of a determination made under a provision of the SRC Act other than under those provisions quoted above can be 'rejected'. The employee or claimant could simply be advised that there is no provision for such a determination to be reconsidered. However, the employee or claimant should also be advised that if he/she is dissatisfied with the advice given, he/she may have a right to seek a review of that 'administrative decision' under the provisions of the Administrative Decisions (Judicial Review) Act 1977. It should also be mentioned that any such application would necessarily have to be made to the Federal Court of Australia and that whether the employee or claimant decides to seek legal advice is a matter for his/her decision and would necessarily be at his/her own expense.
Basically, a request for reconsideration can be made by a party to a determination. In the MRCC context, a party to a determination is the injured employee (that is, a member or former member of the Australian Defence Force) or his/her legal representative, a compensation claimant (for example, a member's widow in the case of the death of an employee) or the Commonwealth. In practice, it is quite rare for the Commonwealth to request a reconsideration of a determination. The only time that might occur is where the Commonwealth believes that it has incorrectly or unjustifiably been found liable to pay compensation to a given employee.
Reconsiderations are not always carried out at the request of a party to a determination; the employee, claimant or the Commonwealth. In some cases, it may be considered necessary for an MRCC Delegate to carry out a review of his or her 'own motion'. A Delegate who made a determination is a 'determining authority' for the purposes of Subsection 60(1) of the Act in relation to that determination. Basically, if a Delegate considers that his/her original decision was incorrect or in some way flawed, it is open to the Delegate either to:
Although all Delegates have the right to carry out a review of their own decisions, the MRCC has a strict policy that such action should only be taken where the result of any such reconsideration will be, or would be, favourable to the employee or claimant. If a Delegate considers, either in light of new evidence or because of a different interpretation of the original evidence, that a decision was wrong and that a reconsideration should be carried out, he or she must discuss the matter with a RD at level 6 or above or with the local MRCC Manager. In cases where it is proposed to revoke or to cease liability in a given case, the MRCC has strict procedures which must be followed. Please refer to section 53.3 of the Liability Handbook.
1.A determination is made under the provisions of the SRC Act.
2.The determination is sent to the injured employee, claimant or representative including reasons for the decision and with a statement that the determination can be reconsidered if the employee or claimant is dissatisfied with the determination.
3.The employee, claimant or representative has a period of 30 days in which to advise the Department that he/she wishes the determination to be reconsidered. Any such request must be in writing and must set out the reasons for the employee's or claimant's dissatisfaction with the determination. Where a verbal request is received the claimant or representative should be advised that it needs to be in writing and include reasons for the request.
4.The written request for reconsideration is registered in the appropriate system by the receiving location and the employee or claimant is advised that it has been referred to a RD for attention (there is a standard letter in Defcare for this purpose). This acknowledgement and registration must be done within 7 days of receiving the request for reconsideration.
5.The compensation and/or rehabilitation claim file is passed to a RD for consideration. This Delegate must not have had any previous involvement in making the decision to be reconsidered, even by way of providing advice. If the Delegate was involved in any way in the original decision, he/she should disqualify himself/herself and arrange for another RD to deal with the request for reconsideration. The RD should contact the claimant or their representative within 7 days of them receiving the request to advise who will be handling the case and the process that will be followed.
6.When the RD has reached a decision, he/she may choose to affirm, revoke or otherwise vary the original determination as he/she thinks fit.
7.The RD writes to the employee or claimant, setting out the decision and, in some detail, his/her reasons for deciding the reconsideration in a particular manner. The employee or claimant must be advised that he/she has a right to 'appeal' to the Administrative Appeals Tribunal if he/she is dissatisfied with the result of the reconsideration – see Section 63 of the SRC Act. At the same time the appropriate system is updated.
While the SRC Act places no limit on the time which can be taken in finalising a request for reconsideration, the MRCC has performance standards which require that the great majority of reconsiderations be finalised within 120 days of receipt of the request for reconsideration.
A decision resulting from a request for reconsideration is known as a 'reviewable decision'.
It has long been the practice within the SRCA jurisdiction to obtain legal advice on complex claims. This has been particularly so with reconsideration and AAT decisions. It is still considered necessary to make legal panels available for delegates due to the complexity of the law and the potential high ongoing costs of claims. The MRCC has used a panel of five firms, established by Comcare, for obtaining legal advice on reconsiderations and AAT matters.
The Military Rehabilitation and Compensation Commission has determined that before a reconsideration cases can be referred to legal panel law firms one or more of the following factors in each category must be present:
It should be noted that not all cases that meet the criteria would necessarily require referral for legal advice. The decision to seek advice would depend on the merits and circumstances of the particular case. A record needs to be placed on each file to indicate why the referral is considered necessary and which criteria have been met. This process will be incorporated into the Quality Assurance program.
It is also required that the relevant Manager of the Reconsiderations Section (Brisbane and ACT Office) examines all matters to be referred for advice before such advice is actually sought. It is further required that the manager examine all advice received from the legal panel and provide guidance to reconsideration delegates on the appropriate decision or course of action to take in each case. The responsibility for the final decision on the claim will continue to rest with the individual delegates.
For primary decisions it is only in the most exceptional matters that legal advice would be sought. Where a primary delegate requires advice on a particular matter they should in the first instance consult senior delegates in their own office. If the matter is still unresolved it should be referred to the Director SRCA Policy via the MRCC discussion line. If warranted that Director, in consultation with the Director ACT office, will refer the matter to a member of the legal panel.
When it is really necessary and appropriate to obtain a legal opinion regarding a particular matter, the relevant Delegate must bear in mind that the final decision is his or her own and he or she should not seek to abrogate that responsibility to a member of a legal panel. Any such legal opinion is one piece of evidence that should be take into account when making a decision.
Cases should not be referred to the legal panel as a matter of course, or to find a way to reject a claim. It is the responsibility of the Delegate to arrive at the correct decision, based on the available evidence. Obtaining a legal opinion is an expensive and time consuming process that needs careful consideration before being undertaken.
If a legal opinion is obtained, the Delegate is not obliged to follow it if the weight of evidence supports another view. For that reason, Delegates should ensure that they provide a full and unbiased statement of the facts and evidence in a particular case. Often the legal panel will also provide a statement of reasons for inclusion in a determination advice. Again, these reasons should not be lifted in their entirety from the legal advice and included in the letter to the compensation claimant. Rather, the reasons obtained as a result of obtaining legal advice should be used by the relevant Delegate as a guide to what can and should be included in the reasons for decision.
AAT Appeals are handled only in the National Office of the MRCC in Canberra.
Applications for review of a 'reviewable decision' (that is, a decision resulting from a reconsideration) must be made to the AAT within 60 days of the date on which the reviewable decision is furnished (provided to) the employee, the claimant or the Commonwealth. In practical terms, the 60 day time limit runs from the day on which the reviewable decision is received.
A compensation claimant under the SRC Act (or the Commonwealth) does not have access to the AAT until a reviewable decision (a decision by a RD) is made.
There is provision for the AAT to extend the time in which an application for review can be made. Where a claimant seeks to lodge a late application for review, the MRCC is consulted (in relation to the cases it determines) as to whether they have any objection to late lodgement of an application for review. Whether a late application can be accepted as a valid request for review is ultimately a matter for the AAT to decide.
Various decisions of the AAT and of the Federal Court of Australia have discussed what are the powers of the AAT in the compensation matters it deals with.
It would be fair to say that the weight of relevant decisions on this issue indicates that the AAT exercises the powers and discretions of the original decision maker; in this context, the RD.
If the RD did not address a matter in the reviewable decision, then the AAT does not have the discretion to consider that matter. To all intents and purposes, the AAT 'stands in the shoes' of the RD and decides the issue(s) which were before the RD and no more.
For example, a matter might come before a RD which relates to an employee's entitlement to weekly incapacity for work benefits. However, when considering that matter, the RD might conclude that liability to pay compensation has in fact ceased and that there is no entitlement to compensation benefits (including incapacity benefits) after a certain date.
In such a case, natural justice would demand that the employee is afforded an opportunity to provide evidence to support continuing liability. Assuming that the RD was satisfied that it was justifiable to cease liability to pay compensation, a reviewable decision might be issued finding that the Commonwealth is not liable to pay compensation to the employee after a certain date. In such a case, the RD has appropriately gone beyond the scope of the original decision in finding that liability has ceased.
Were the matter to become the subject of an application to the AAT, it would be open to the AAT to consider the correctness of the decision to cease liability to pay compensation. If the AAT concluded that the decision to cease liability was incorrect, it would also be open to the AAT to make a finding accordingly and to remit the matter to the MRCC for determination of the employee's actual entitlements under the SRC Act. Arguably, however, it would not be open to the AAT to make any findings regarding the employee's actual entitlement to benefits, except possibly the incapacity for work benefits to which the original (primary) decision related.
Ultimately, the AAT has a responsibility to come to the correct and/or preferable decision in relation to a particular matter that it is asked to consider.
1.The employee, claimant or the Commonwealth applies to the AAT for review of a specific reconsideration decision (a reviewable decision). Applications should be made within 60 days of the date on which the reconsideration decision was received. However, as mentioned, there is provision for the AAT to extend the time allowed in which to apply for review by the AAT.
2.The AAT notifies the MRCC that an application for review has been lodged, to which decision the application relates and the matter(s) to which the AAT application relates.
3.The MRCC has a period of 28 days in which to provide the AAT with a statement in accordance with Section 37 of the Administrative Appeals Tribunal Act 1975. The statement has to set out a history of the case and the reasons why the reviewable decision was made.
4.Since the AAT does not encourage matters to proceed to a full hearing, there is a desire to try to resolve matters between the parties to the AAT application (usually the employee or claimant and the MRCC) without the necessity for a hearing.
5.For this reason, there will usually be one or more conciliation conferences before a matter is set down for a formal hearing. Conciliation conferences are usually conducted by conference telephone with the parties to the conference being the employee, claimant or his/her legal or other representative such as an ex-service organisation member, the legal representatives of the Department who are briefed by National Office Appeals Section staff and, finally, a member or Senior Member of the AAT.
6.If it is not possible to resolve a matter without a formal hearing by the AAT, a hearing date will be scheduled and the matter will be heard at the appointed time. The parties to proceedings are as in 5. above.
7.When the hearing is finalised, the AAT reserves judgement and, after a period of usually weeks, hands down a decision regarding the matters that have been considered.
8.The parties to the AAT's decision are bound by that decision unless an appeal against the AAT's decision is made to the Federal Court of Australia.
9.An appeal to the Federal Court can only be made on a point of law; that is, on an interpretation of the relevant legislation. In other words, there is no provision for the Federal Court to review an AAT decision on the basis of the facts of a case.
If the AAT makes a decision which is favourable to the employee or claimant, the AAT may order that the employee or claimant's costs (legal and other) or part of those costs should be met by the Department.
Such matters are dealt with by the National Office Appeals Section and its legal representatives and need not concern MRCC State and Territory office staff.
If, for example, the AAT decides, contrary to the result of the MRCC's internal reconsideration, that an injured employee is entitled to be paid an amount of compensation for a permanent whole person impairment, the MRCC is obliged to implement the AAT's decision as quickly as possible by finding liability to pay the appropriate amount of compensation.
However, if the MRCC does not agree with the AAT's decision and wishes to appeal to the Federal Court, it is necessary that an application for a stay of payment be lodged with the Federal Court as soon as possible. There is no guarantee that the Federal Court will grant the stay of payment. If it does not, the MRCC is obliged to determine the employee's entitlement to lump sum compensation for permanent impairment without delay. This would normally involve the National Office Appeals Section's referring a copy of the AAT's decision to the relevant MRCC State or Territory office with a request that the employee's entitlement be determined as quickly as possible.
It is also notable that the AAT itself has a right to issue an order for a stay of payment, although in practice this is a power which is rarely applied, either by the AAT, or by the Federal Court.
While the AAT and the Federal Court have similar powers in relation to compensation matters arising under the SRC Act, the two bodies operate in different ways.
The AAT is intended to be an informal 'administrative' means of resolving disputes not only in compensation matters arising under the SRC Act, but also in relation to a great many other pieces of Commonwealth legislation which involve administrative decisions; often decisions by Australian Government administrative officers such as MRCC Delegates.
Although those whose claims are heard in the AAT are most often legally represented, there is certainly no requirement, for example, that a compensation claimant who is aggrieved by a MRCC reconsideration decision must be legally or otherwise represented. The AAT has shown over many years that it is prepared to do everything possible to assist claimants who cannot afford legal representation, or who choose not to be legally represented, in presenting their case to the AAT so that the correct or preferable decision is made.
Therefore, compensation claimants who indicate to MRCC staff that they wish to apply to the AAT for review of a reconsideration decision should be neither encouraged nor discouraged from engaging the services of a solicitor or of any other representative who may be able to help the claimant if a matter proceeds to consideration by the AAT. The employee or claimant should simply be advised that whether he/she chooses to be legally or otherwise represented in an application to the AAT is a matter for the employee or claimant's decision. No further opinion or information should be offered in such circumstances.
However, the same is not true in the case of an employee or claimant who may indicate an intention to appeal an AAT decision to the Federal Court. In such circumstances, the employee or claimant should be advised that any application to the Federal Court would necessitate legal representation and that any costs associated with obtaining legal advice would be obtained at the employee or claimant's own expense.
Any enquiries regarding reconsiderations or review by the AAT or the Federal Court of Australia should first be directed to the local MRCC Manager or Assistant Manager. National Office or Brisbane Office Reconsiderations and Appeals Section can also be contacted as necessary if an appeal related question cannot be answered locally.
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