Brophy and Comcare - [2001] AATA 644

DECISION AND REASONS FOR DECISION [2001] AATA 644

ADMINISTRATIVE APPEALS TRIBUNAL )

) No A2001/122

GENERAL ADMINISTRATIVE DIVISION       )
           Re      JOY BROPHY
  Applicant
           And    COMCARE
  Respondent

DECISION

Tribunal M J Sassella, Senior Member

Date11 July 2001
PlaceCanberra

Decision      The Tribunal has jurisdiction to entertain this application for review.
  ..............................................
  Senior Member
CATCHWORDS
WORKERS' COMPENSATION – whether tribunal can entertain application – return to work program - rehabilitation

Safety, Rehabilitation and Compensation Act, ss 34(1), 36, 37(1)-(4), 38, 60(1), definitions of "decision", "determination", "determining authority", "reviewable decision", 64.
Administrative Appeals Tribunal Act 1975 s 3(3).
Deputy Commissioner of Patents v Board of Control of Michigan Technological University (1979) 2 ALD 711
Re Burt and Commissioner for Safety, Rehabilitation and Compensation (AAT 7578, 6 December 1991)
Re Robertson and Civil Aviation Authority [1999] AATA 608
Comcare v Meng Chang [1996] 927 FCA 1
Hardin v Comcare (1995) 21 AAR 392
Deputy Commissioner of Patents v Board of Control of Michigan Technical University (1979) 43 FLR 9
Hevi Lift PNG Pty Ltd v Civil Aviation Safety Authority (1997) 79 FCR 19
Clancy v Attorney-General of Queensland (1992) 26 ALD 746
Re Secretary, Department of Social Security and Pomersbach (1991) 25 ALD 73
Re Secretary, Department of Social Security and Campbell (1991) 25 ALD 625
Re Wardle and Comcare [1999] AATA 959

REASONS FOR DECISION

10 July 2001 M J Sassella, Senior Member

History of application

Ms Joy Brophy ("the Applicant") sustained a back injury in work accident on 7 October 1993 (T2). She submitted a compensation claim on 22 November 1993 (T4).
The Commonwealth Rehabilitation Service ("CRS") provided a report to either Comcare ("the Respondent") or Qantas ("the employer") which was undated but was prepared some time between 30 June 1994 and 18 July 1994 (T6). This report contemplated that the Applicant would return to work but that ongoing monitoring would be required.
A return to work ("RTW") plan was settled on 3 June 1994 (T8).
A CRS progress report was prepared on 5 August 1994 (T10).
The RTW plan was amended on 25 August 1994 (T12). There were further CRS reports and amended RTW plans.
The RTW plan was closed on 20 April 1995 (T16). The CRS closed the case on 20 April 1995 (T19). She was at work and continuing at that stage.
There were no other developments of note until 10 February 1997 when the employer gave the Applicant notice of possible termination of her employment (T39).
On 1 April 1997 the employer notified the Respondent that the Applicant's employment was terminated as of that date (T41).
On 9 September 1997 the Applicant's solicitor wrote to the employer requesting a rehabilitation assessment for the Applicant pursuant to s 36 of the Safety Rehabilitation and Compensation Act 1988 ("the Act") (T43).
On 26 September 1997 the employer's solicitor responded saying that the Applicant had been previously assessed for rehabilitation and had completed the relevant rehabilitation program in 1995 (as per T16) (T49).
On 27 October 1997 the Applicant's solicitor…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Brophy and Comcare

Details

AGLC: Brophy and Comcare [2001] AATA 644
Case: [2001] AATA 644
Decision Date: 11 July 2001

CaseChat Overview and Summary

Brophy v Comcare involved a dispute regarding the review of a decision made by Qantas, acting as the rehabilitation authority under the Safety, Rehabilitation and Compensation Act, concerning a return to work program for the applicant. The matter was heard by the Administrative Appeals Tribunal. The central legal issue before the court was whether the Tribunal had jurisdiction to entertain an application for the review of a decision made by the rehabilitation authority, specifically concerning a return to work program and rehabilitation.

The court considered the definitions of "decision", "determination", "determining authority", and "reviewable decision" as provided in the Act. It also examined relevant case law, including Deputy Commissioner of Patents v Board of Control of Michigan Technological University, Re Burt and Commissioner for Safety, Rehabilitation and Compensation, and Re Robertson and Civil Aviation Authority. The court determined that the decision made by Qantas under section 37 of the Act was indeed a "decision" for the purposes of the Act and that the respondent's review of this decision constituted a "reviewable decision". Therefore, the Tribunal had jurisdiction to entertain the application for review.

Based on the analysis, the Tribunal found that there was a decision made by Qantas under section 37 of the Act, and the respondent had conducted a review of this decision. Consequently, the Tribunal concluded that it had jurisdiction to entertain the application for review. The outcome of the case affirms the Tribunal's authority to review decisions made by rehabilitation authorities in relation to return to work programs and rehabilitation under the Act.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Tribunal therefore finds that there has here been a decision by Qantas, the rehabilitation authority, under s 37 of the Act. There is a decision under s 37 for the Respondent to review. The Respondent has conducted a review and there is before the Tribunal a reviewable decision.Decision The Tribunal has jurisdiction to entertain this application for review.

Ratio Decidendi

Legal Principle Established

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