CONRAD ENGELHARD and COMCARE

[2009] AATA 686

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 686

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/2395

GENERAL ADMINISTRATIVE DIVISION		)
Re		CONRAD ENGELHARD

Applicant

And COMCARE

Respondent

DECISION

Tribunal Senior Member Bernard J McCabe

Date4 September 2009

PlaceBrisbane (heard in Perth)

Decision

The Tribunal:

1.     sets aside the decision under review;

2.     remits the matter to the respondent for reconsideration according to law.

...(Sgd) Bernard J McCabe..

Senior Member

CATCHWORDS

WORKERS’ COMPENSATION – Injury – Failure to undertake rehabilitation program – Whether rehabilitation program flawed – Respondent concedes program flawed – Failure to have regard to applicant’s attitude – Decision set aside and remitted

Administrative Appeals Tribunal Act 1975 (Cth) ss 34D, 43

Safety, Rehabilitation and Compensation Act 1988 (Cth) s 37(3)

McGuinness v Comcare[2007] FMCA 1486; (2007) 99 ALD 57

Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597

Re Engelhard and Comcare [2009] AATA 194

REASONS FOR DECISION

4 September 2009 Senior Member Bernard J McCabe         

1.      The applicant in these proceedings is Mr Conrad Engelhard. He was injured at work and he has been involved in a dispute with Comcare over a rehabilitation program. A decision with written reasons was delivered after a lengthy dispute resolution process: see Re Engelhard and Comcare [2009] AATA 194. After the decision was handed down, the respondent wrote to the Tribunal to point out an error that had been made. This decision and the reasons which accompany it are intended to address that error.

History

2.      There were originally two applications for review brought before the Tribunal:

·Application No 2007/2395, which dealt with the decision to establish a rehabilitation program (“the rehabilitation decision”); and

·Application No 2007/2451, which dealt with the subsequent decision to suspend payments because Mr Engelhard had not undertaken the program (“the suspension decision”).

3. The respondent concedes there was a flaw in the way the rehabilitation program was formulated; specifically, the respondent acknowledges the applicant was not consulted as required under s 37(3) of the Safety, Rehabilitation and Compensation Act 1988 (“the SRC Act”). In those circumstances, having regard to the reasons in McGuinness v Comcare[2007] FMCA 1486; (2007) 99 ALD 57, the respondent accepts there was no valid rehabilitation program in existence. In the absence of a valid rehabilitation program Mr Engelhard’s payments could not be validly suspended for failing to comply with a rehabilitation program.

4.      It follows that the parties agree that both of the decisions are defective and must be set aside. They have been in agreement to that extent since the first day on which the matter was set down for hearing in Perth before me in May 2008, although Mr Engelhard wanted the Tribunal to proceed with a hearing so he could ventilate his concerns about the process in which he was engaged.

5.      I did not think a hearing would enable me to put Mr Engelhard in a better position following the respondent’s…