Allan and Comcare

[2008] AATA 697

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 697

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/5330  

GENERAL ADMINISTRATIVE DIVISION		)
Re		DONNA ALLAN

Applicant

And   COMCARE

Respondent

DECISION

Tribunal Deputy President P E Hack SC
Associate Professor J B Morley RFD, Member

Date11 August 2008  

PlaceBrisbane

Decision The Tribunal:
(a) sets aside the decision under review;
(b) orders the respondent to pay the applicant’s costs of and incidental to the application to be taxed if not agreed.  

...............Signed................

Deputy President

CATCHWORDS

COMPENSATION – failure to attend a rehabilitation programme – question of whether applicant had a reasonable excuse for failing to attend – applicant’s state of mind and state of knowledge were that she was physically unwell and had been told by her treating medical practitioner she was unfit to attend – excuse found to be reasonable – decision under review set aside

Safety, Rehabilitation and Compensation Act 1988 (Cth) – s 37

Pascoe v Australian Postal Corporation (2004) 77 ALD 464

Telstra Corporation Ltd v Administrative Appeals Tribunal (2003) 37 AAR 40

REASONS FOR DECISION

11 August 2008	Deputy President P E Hack SC
Associate Professor J B Morley RFD, Member

Introduction

1.The applicant, Ms Donna Allan, seeks a review of the determination by the respondent, Comcare, made on 21 March 2007 and affirmed on reconsideration on 30 August 2007, that Ms Allan had refused or failed to undertake a rehabilitation programme. The consequence of that determination was that Ms Allan’s entitlement to compensation pursuant to the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act) was suspended by operation of s 37 of that Act.

Factual background

2.The background to the matter is not in dispute. Ms Allen was, at all material times, an employee of the Commonwealth. In February 2006 Comcare accepted liability to pay compensation to Ms Allan for a condition described as “adjustment disorder with mixed anxiety and depressed mood”. The date of injury was taken to be 14 October 2004, that being the date of the first medical treatment for the condition[1].

[1] See s 7(4), SRC Act.

3.In October 2004 Ms Allan was employed by the Commonwealth within the Department of Agriculture, Fisheries and Forestry. In June 2006 that Department put in place the processes for an assessment of Ms Allan’s capability of undertaking a rehabilitation programme[2]. That assessment was undertaken by a psychologist in the employ of Strive Occupational Rehabilitation Pty Ltd, Ms Kasrynne Huolohan.

[2] See s 36, SRC Act.

4.Dr Gary Larder is a consultant psychiatrist. Dr Larder has been treating Ms Allan since March 2005. In July 2006 he expressed the opinion that Ms Allan was capable “from a medical perspective” of returning to work in “suitable duties” for 20 to 25 hours per week. Following receipt of that certificate from Dr Larder, the Department, by its rehabilitation adviser Ms Kay Dreyer, wrote to Ms Allan on 26 July 2006 requiring her to commence work at the Australian Quarantine Inspection Service on 1 August…