Carvalho and Comcare (Compensation)

This matter concerned an appeal by Ms Carvalho against a decision by Comcare. Ms Carvalho had a history of work-related injuries, including a right shoulder injury, aggravation of that injury, and bilateral carpal tunnel syndrome, for which she had received compensation and undergone surgery. In 2000, a consent decision established that she continued to suffer from neuropathic cervico-brachial pain syndrome, to which her Commonwealth employment materially contributed, entitling her to ongoing compensation. Subsequently, Ms Carvalho sought approval for gym programs, which were approved at various times. However, in 2007, medical opinions suggested her work injuries were no longer active and that a gym program would be for general health and wellbeing rather than a necessary consequence of injury. Comcare subsequently made a determination on 17 October 2007, denying liability for a gym program and household help.

The primary legal issues before the court were: firstly, the date on which Ms Carvalho effectively requested a reconsideration of Comcare's 17 October 2007 determination for the purposes of section 62 of the *Safety, Rehabilitation and Compensation Act 1988* (Cth); and secondly, if that request was made outside the statutory time limit, whether it was appropriate to exercise the discretion to extend time for such a request, particularly in relation to a request made in August 2018. Ms Carvalho contended that she was unable to make a timely request due to illness and had made multiple attempts to seek reconsideration over several years, which Comcare had not formally addressed until her July 2018 online request. Comcare argued that Ms Carvalho's communications prior to August 2018 did not constitute a properly formulated reconsideration request under section 62, and that her failure to produce supporting documents warranted an adverse inference.

The court considered section 62 of the Act, which outlines the process for reconsideration of determinations, including the requirement for a request to set out reasons and be made within 30 days or a further period allowed by the determining authority. The court noted that a request made on 3 March 2008, which was outside the 30-day period, had been accepted as being within an extended time due to Ms Carvalho's illness, and there was no indication that a different conclusion should be reached regarding the exercise of discretion for that period. However, the court found that the decision under review, which related to Ms Carvalho's August 2018 request, was affirmed.

The court remitted the matter to Comcare to undertake the reconsideration of the determination made on 17 October 2007, which had been requested by Ms Carvalho on 3 March 2008 and had not yet been acted upon.