Bian and Comcare

Case [2011] AATA 241

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 241

ADMINISTRATIVE APPEALS TRIBUNAL      )     No 2010/3091

)          

GENERAL ADMINISTRATIVE DIVISION

)    

Re SHEFANG BIAN

Applicant

And

COMCARE

Respondent

DECISION

Tribunal Professor RM Creyke, Senior Member

Date11 April 2011

PlaceCanberra

Decision The decision under review is set aside and in substitution it is decided the applicant had a reasonable excuse for failure to comply with the rehabilitation program, and that compensation payments should recommence.

.................[sgd].............................

Professor RM Creyke, Senior Member

CATCHWORDS

WORKERS’ COMPENSATION – rehabilitation program – refusal or failure to undertake rehabilitation program – whether reasonable excuse for failure to undertake rehabilitation program – whether nature of rehabilitation program can be taken into account when considering reasonable excuse -  whether compensation should have been suspended – decision under review set aside

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4(1), 36, 37(1), 37(3), 37(7)

Australian Postal Corporation v Forgie (2003) 76 ALD 578

Australian Postal Corporation v Pascoe [2003] FCA 390

Australian Postal Corporation v Pascoe (2004) 77 ALD 464

Buck v Bavone (1976) 135 CLR 110

Comcare v Chenhall (1992) 109 ALR 361

George v Rockett (1990) 170 CLR 104

Gilbert and Comcare [2009] AATA 224

Re Finch and Telstra Corporation Ltd (AATA 13130, 27 July 1998)

Re Georges and Telstra Corporation Ltd [2009] AATA 731

Repatriation Commission v Webb (1987) 13 ALD 421

Trajkovski v Telstra Corporation Ltd (1998) 153 ALR 248

REASONS FOR DECISION

11 April 2011

Professor RM Creyke, Senior Member

1.      Ms Shefang Bian has an accepted claim for compensation for an adjustment reaction with anxious mood, sustained on 10 September 2007.

2.     On 4 March 2010, the ACT Department of Education and Training (Agency) suspended Ms Bian’s compensation entitlements from that date because, it was asserted, she refused to undertake a rehabilitation program without having a reasonable excuse.

3.     That decision was upheld on review on 18 June 2010. On 26 July 2010, Ms Bian sought further review by the Tribunal.

LEGISLATION

4.     The relevant legislation is found in the Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act).

4 (1) rehabilitation program includes medical, dental, psychiatric and hospital services (whether on an in-patient or out-patient basis), physical training and exercise, physiotherapy, occupational therapy and vocational training.

36 Assessment of capability of undertaking rehabilitation program

(1) Where an employee suffers an injury resulting in an incapacity for work or an impairment, the rehabilitation authority may at any time, and shall on the written request of the employee, arrange for the assessment of the employee's capability of undertaking a rehabilitation program.

(2) An assessment shall be made by:

(a) a legally qualified medical practitioner nominated by the rehabilitation authority;

(b) a suitably qualified person (other than a medical practitioner) nominated by the rehabilitation authority; or

(c) a panel comprising such legally qualified medical practitioners or other suitably qualified persons (or both) as are nominated by the rehabilitation authority.

(3) The rehabilitation authority may require the employee to undergo an examination by the person…

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Bian and Comcare [2011] AATA 241
Case
[2011] AATA 241
Decision Date

CaseChat Overview and Summary

Bian and Comcare involved a dispute regarding workers' compensation and a refusal to undertake a rehabilitation program. The case was heard and determined by the Administrative Appeals Tribunal (AAT). The applicant, Bian, contested Comcare's decision to suspend her compensation payments due to her failure to participate in a prescribed rehabilitation program. The central issue before the Tribunal was whether Bian had a reasonable excuse for not engaging in the rehabilitation program and whether the nature of the program could be considered in determining the existence of a reasonable excuse. Additionally, the Tribunal had to decide whether compensation payments should have been suspended.

The Tribunal found that the nature of the rehabilitation program could be taken into account when assessing whether Bian had a reasonable excuse for not participating. The Tribunal considered the reasonableness of Bian's refusal in light of the specific requirements of the rehabilitation program. The Tribunal concluded that Bian had a reasonable excuse for her non-compliance due to the program's nature and the circumstances surrounding her case. Consequently, the Tribunal determined that the decision to suspend compensation payments was not justified, and the payments should recommence.

In light of the Tribunal's findings, the decision under review was set aside. The Tribunal substituted its decision, finding that Bian had a reasonable excuse for failing to comply with the rehabilitation program, and compensation payments should recommence. This outcome highlights the importance of considering the nature of a rehabilitation program and the individual circumstances of the applicant when assessing the reasonableness of non-compliance with such programs in workers' compensation cases.

Orders

Orders of the court

The decision under review is set aside and in substitution it is decided the applicant had a reasonable excuse for failure to comply with the rehabilitation program, and that compensation payments should recommence.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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