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 concessions. While it might have been theoretically possible for me to devise a rehabilitation program in the course of a hearing, that did not seem a practical or sensible course to adopt. The most efficient course of action was to permit the respondent to commission its experts to devise a new program that met Mr Engelhard’s needs. If Mr Engelhard was unhappy with the revised program, he could bring a fresh application for review.

6.      I did not proceed with the hearing in May 2008, although I did not immediately accede to the respondent’s request to set aside the decisions under review. I wanted the parties to participate in an alternative dispute resolution process that might assist them to address Mr Engelhard’s underlying concerns about the process. I note the Department of Defence was not obliged to participate in the dispute resolution processes, but it did so at the invitation of the Tribunal and Comcare. In the months that followed, the parties attended several dispute resolution sessions. They were only partially successful.

7. The partial success lay in the consent agreement pursuant to s 34D of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”) to set aside the suspension decision dated 13 December 2006, which was the subject of Application No 2007/2451. The Tribunal’s s 34D decision in relation to Application No 2007/2451 was dated 12 September 2008.

8.      The rehabilitation decision (ie Application No 2007/2395) remained on foot. Once it became clear the parties were unable to reach a consent agreement following the mediation processes, I convened a further hearing to discuss the way ahead in January 2009. After hearing from the parties, I foreshadowed my intention to set aside the outstanding decision and remit the matter to the respondent for reconsideration.

9.      When it came time to write the formal reasons giving effect to the decision I had foreshadowed, I referred to earlier submissions provided to me by the respondent. Those submissions included an error: the decision numbers for the two applications had been reversed, although that simple error does not excuse the confusion that followed. In essence, I overlooked the fact of the earlier consent decision in relation to the suspension decision and assumed in my reasons that it was the decision that was still on foot. The consent decision was not included in the documents from which I was working. It was a regrettable mistake.

The way forward

10. Where does that leave us? In the decision dated 20 March 2009, I purported to set aside the decision in Application No 2007/2395 (the rehabilitation decision). But the reasons that accompanied my decision referred to the other reviewable decision (the suspension decision) which had already been set aside by consent pursuant to s 34D of the AAT Act.

11.     The respondent has provided me with written submissions suggesting ways in which to deal with the matter. I have also discussed the matter with Mr Engelhard at a directions hearing on 20 July 2009.

12. The respondent argues I have not actually reached a decision in relation to the rehabilitation decision and pronounced my reasons for that decision. In substance, the respondent argues I was clearly purporting to set aside the suspension of entitlements decision, notwithstanding my reference to Application No 2007/2395. On that analysis, I have not discharged my duty under s 43 of the AAT Act in relation to the rehabilitation decision. It remains on foot. The respondent says the High Court’s decision in Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597 suggests the Tribunal’s role does not effectively end until I have done all that I need to do. The respondent says I still need to direct myself to the rehabilitation decision and give reasons for whatever conclusion I reach.

13.     I accept the respondent’s submissions. I think the rehabilitation decision remains on foot before the Tribunal.

14.     After hearing submissions from the parties on 20 July 2009, I indicated that I proposed to set aside the decision in the rehabilitation decision to clear the way for the parties to get on with negotiating a new program. I indicated at the hearing that I would formally state the reasons for my decision to dismiss the rehabilitation decision which was the subject of Application No 2007/2395. If my decision is incorrect, this statement of reasons may at least assist the Court should a further review become necessary.

15. The reasons for setting aside the decision to impose a rehabilitation program and remitting the matter for reconsideration to the decision-maker pursuant to s 43 of the AAT Act are as follows:

·The employer did not comply with its obligation under s 37(3) of the SRC Act to take into account the employee’s attitude to the program; and

·Comcare and the employer are in a better position to devise a rehabilitation program than the Tribunal. It would be cumbersome and costly for the Tribunal to attempt to substitute a rehabilitation program of its own making for the rehabilitation program that has been devised by experts and put to the applicant.

16.     Mr Engelhard is understandably frustrated by what has occurred. He remains suspicious about the intentions of Comcare and the Department of Defence. I was told during the course of the most recent hearing that proceedings in relation to the revised rehabilitation program have already been commenced. Those proceedings are not before me, so I am unable to comment on what, if anything, they might achieve. I assume, however, that they will provide a more suitable vehicle for Mr Engelhard to ventilate his concerns about the underlying process than the proceedings in Application No 2007/2395.

Conclusion

17.     The decision in Application No 2007/2395 is set aside and the matter is remitted to the respondent for reconsideration according to law.

I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe.

Signed: ....(sgd) Michael Buckingham............
  Michael Buckingham, Associate

Dates of Hearing  7 May 2008
  29 January 2009
  20 July 2009
Date of Decision  4 September 2009
Applicant was self-represented
Counsel for the respondent      Mr T Howe QC
Solicitor for the respondent      DibbsBarker Lawyers