Australian Taxation Office and Comcare (Compensation)

This matter concerned an application by Olga Kusiak, an employee of the Australian Taxation Office (ATO), for a declaration that she had a reasonable excuse not to attend a medical appointment with Dr Yvonne Skinner. The ATO had directed Ms Kusiak to attend this appointment as part of the review process concerning her compensation claim, which had been accepted by Comcare for cervicobrachial pain disorder. The application was heard by Deputy President Gary Humphries of the Administrative Appeals Tribunal.

The primary legal issues before the Tribunal were whether it possessed the jurisdiction to make a declaration that Ms Kusiak had a reasonable excuse for not attending the medical appointment, and whether it had the power to compel her attendance or direct her not to attend. The Tribunal was required to consider the scope of its review powers under the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) and the Administrative Appeals Tribunal Act 1975 (AAT Act) in relation to decisions made under sections 36 and 57 of the SRC Act.

The Tribunal reasoned that its power to review decisions is derived from the AAT Act and specific provisions within the SRC Act. It determined that while the Tribunal has the power to review decisions made under section 36 of the SRC Act concerning an employee's capability of undertaking a rehabilitation program, it does not have the power to review decisions made under section 57(1) which require an employee to undergo a medical examination to assess a compensation claim. Crucially, the Tribunal found it also lacked the power to make a declaration under section 57(2) that an employee has a reasonable excuse for refusing to attend such an appointment.

Consequently, the Tribunal concluded that it did not have jurisdiction to make the declaration sought by Ms Kusiak, nor did it have the power to compel her attendance or direct her not to attend the medical appointment with Dr Skinner. The application was therefore refused.