Cook and Comcare (Compensation)

Case [2017] AATA 227

Cook and Comcare (Compensation) [2017] AATA 227 (23 February 2017)

Division:GENERAL DIVISION

File Number(s):    2016/1492      

2016/4632

Re:Tristan Cook

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Senior Member S Raymond

Date:23 February 2017

Place:Adelaide

In relation to Application 2016/1492, the Tribunal affirms the decision under review dated 8 February 2016.

In relation to Application 2016/4632, the Tribunal affirms the decision under review dated 1 July 2016.

...................[Sgd].....................................................

Senior Member S Raymond

CATCHWORDS

COMPENSATION - rehabilitation program - alteration - whether extension of program available - voluntary redundancy - where employee no longer incapacitated - exercise of discretion as to whether program should be extended and its contents altered - decision under review affirmed.

Compensation payments under s 37(5) - whether can be paid when employee paid compensation under s 20 of the Safety, Rehabilitation and Compensation Act 1988

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 5, 16, 19, 20, 36, 37 & 40

CASES

Daff and Comcare [2010] AATA 732

Cook and Comcare (Compensation) [2016] AATA 371
Chang v Comcare (1997) (unreported, FCA 97/823, 25 June 1997)
Australian Postal Corporation v Pascoe [2005] FCA 289
Australian Telecommunications Corporation v Moffat [1992] FCA 105
Commonwealth of Australia v Holland (1991) 24 NSWLR 198
Department of Defence v Fox [1997] FCA 3
Comcare v Line [2002] FCAFC 321
Telstra v Slater [2001] FCA 149
Telstra Corporation Limited v Lyons [2003] FCA 1168

Cook v Telstra Corporation Limited [2003] AATA 786

SECONDARY MATERIALS

Australian Public Service Commissioner's Directions 2013

REASONS FOR DECISION

Senior Member S Raymond

23 February 2017

  1. The issues in each of the two applications for review relate to the rehabilitation provisions of Part III Division 3 of the Safety, Rehabilitation and Compensation Act 1988 Act (the SRC Act).  The first application for review (2016/1492) involves consideration as to whether a particular rehabilitation program for Mr Cook should be extended and altered in its content.  The second application for review (2016/4632) relates to whether Mr Cook can be paid certain compensation payments.

    BACKGROUND

  2. The applicant, Mr Cook, was employed by the Department of Defence in the role of project manager.  Mr Cook is currently aged 46 years.  He sustained an injury in 2012, namely a major depressive disorder (recurrent episode) for which compensation liability has been accepted by his employer.

  3. In 15 November 2013 he accepted a voluntary redundancy package from his employer and his employment with the Department of Defence ceased.

  4. Since his injury Mr Cook has received medical treatment for the accepted injury and has received payments of compensation under s 16 of the SRC Act.

  5. From May 2012 up to and including the date his work with the employer ceased on 15 November 2013, Mr Cook was incapacitated for work by the accepted injury and received incapacity payments under s 19 of the SRC Act.

  6. Following the cessation of his employment Mr Cook accessed the employer funded portion of his superannuation as a pension. Mr Cook’s incapacity payments were then paid pursuant to s 20…

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Details
AGLC
Cook and Comcare (Compensation) [2017] AATA 227
Case
[2017] AATA 227
Decision Date

CaseChat Overview and Summary

This matter concerned two applications for review brought by Mr Cook against Comcare, relating to the rehabilitation provisions of the *Safety, Rehabilitation and Compensation Act 1988* (SRC Act). The first application, 2016/1492, concerned whether Mr Cook's rehabilitation program should be extended and its contents altered. The second application, 2016/4632, related to whether Mr Cook was entitled to certain compensation payments. Mr Cook, a former project manager for the Department of Defence, sustained a major depressive disorder in 2012, for which compensation liability was accepted. He subsequently accepted a voluntary redundancy package in November 2013.

The primary legal issues before the Tribunal were whether Mr Cook, as a former employee, was still considered an "employee" for the purposes of the rehabilitation provisions of the SRC Act, and whether the Tribunal had the power to extend or alter a rehabilitation program that had already expired. Additionally, the Tribunal considered whether compensation payments under s 37(5) of the SRC Act could be paid concurrently with payments made under s 20 of the Act.

The Tribunal reasoned that the definition of "employee" under s 5(1) of the SRC Act was extended by s 5(9) to include former employees in certain circumstances, including where Comcare had incurred a liability in relation to them. The Tribunal noted that there was no dispute that Mr Cook was capable of undertaking a rehabilitation program. However, it found that the rehabilitation program under consideration had expired, and therefore, reviewing its contents retrospectively would have no utility. The Tribunal also considered Mr Cook's desire for further rehabilitation assistance to obtain employment closer to his previous role, but concluded that the expired nature of the program precluded such an extension or alteration.

Consequently, the Tribunal affirmed the decisions under review. In relation to Application 2016/1492, the decision dated 8 February 2016 was affirmed. In relation to Application 2016/4632, the decision dated 1 July 2016 was also affirmed.

Orders

Orders of the court

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Background

Background to the litigation

The issues in each of the two applications for review relate to the rehabilitation provisions of Part III Division 3 of the Safety, Rehabilitation and Compensation Act 1988 Act (the SRC Act). The first application for review (2016/1492) involves consideration as to whether a particular rehabilitation program for Mr Cook should be extended and altered in its content. The second application for review (2016/4632) relates to whether Mr Cook can be paid certain compensation payments.BACKGROUND The applicant, Mr Cook, was employed by the Department of Defence in the role of project manager. Mr Cook is currently aged 46 years. He sustained an injury in 2012, namely a major depressive disorder (recurrent episode) for which compensation liability has been accepted by his employer. In 15 November 2013 he accepted a voluntary redundancy package from his employer and his employment with the Department of Defence ceased. Since his injury Mr Cook has received medical treatment for the accepted injury and has received payments of compensation under s 16 of the SRC Act. From May 2012 up to and including the date his work with the employer ceased on 15 November 2013, Mr Cook was incapacitated for work by the accepted injury and received incapacity payments under s 19 of the SRC Act. Following the cessation of his employment Mr Cook accessed the employer funded portion of his superannuation as a pension. Mr Cook’s incapacity payments were then paid pursuant to s 20 of the SRC Act. Such payments ceased in about February 2016.[1][1] Refer to footnote 16. The Department of Defence, in its role as the rehabilitation authority, made arrangements under s 36 of the SRC Act for Mr Cook to be assessed as to his capability of undertaking a rehabilitation program. Certain assessments were obtained and determinations were made under s 37 of the SRC Act that Mr Cook should undertake a rehabilitation program. The original rehabilitation program[2] start date is recorded as 9 February 2015.[3] There were four alterations to that program, the latest one being from 20 November 2015 to 29 February 2016.[4] The latest rehabilitation program is the subject of the application for review number 2016/1492. [2] Although it is apparent that there was rehabilitation undertaken from August 2013; Exhibit T3 at page 16.[3] Exhibit T1 at page 15.[4] Exhibit T1 at pages 15 and 18. Mr Cook gained alternative employment in January 2016. He is seeking further rehabilitation assistance in obtaining employment at a level or type closer to the level of his previous employment as a project manager [Executive Level 1]. Application for review 2016/1492 The first decision under review (2016/1492) relates to a particular determination about a rehabilitation program. By a determination dated 20 November 2015 the Department of Defence altered Mr Cook’s rehabilitation program. Comcare reconsidered the determination in its decision dated 8 February 2016.[5] [5] Exhibit T1 at pages 70-74. In the November determination, the delegate determined the particular program as being the most suitable to assist Mr Cook return to work. The determination states “Please note that the final goal of this program is to assist you to obtain alternative paid employment.” It is in similar terms to the previous rehabilitation program dated 17 September 2015 except for adding the terms requiring Mr Cook to attend appointments with a psychologist and his treating doctor.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Tribunal has reached the conclusion that each of the decisions under review is the correct or preferable decision. Consequently, it must affirm each of the decisions under review.DECISION In relation to Application 2016/1492, the Tribunal affirms the decision under review dated 8 February 2016.In relation to Application 2016/4632, the Tribunal affirms the decision under review dated 1 July 2016

Ratio Decidendi

Legal Principle Established

Having regard to the concession of counsel in this matter and noting the remarks of Deputy President Bean,[9] to the effect that application 2016/1492 is not affected by her decision and will remain on foot, the Tribunal considers it appropriate to consider and determine the substantive issues. It will not make a dismissal order under s 42B of the AAT Act.[9] Cook and Comcare (Compensation) [2016] AATA 371, at paragraph [25].Consideration of 2016/1492 The issue in this application relates to s 37(1) of the SRC Act which provides as follows: “A rehabilitation authority may make a determination that an employee who has suffered an injury resulting in an incapacity for work or an impairment should undertake a rehabilitation program.” That provision follows an assessment of the employee’s capability of undertaking a rehabilitation program.[10][10] By virtue of s36 of the SRC Act. The term “employee” is defined in s 5 (1) of the SRC Act. The relevant sub-clause (a) is set out below:“(a) a person who is employed by the Commonwealth or by a Commonwealth authority, whether the person is so employed under a law of the Commonwealth…or under a contract of service or apprenticeship” Importantly, s 5(9) of the SRC Act extends the definition of “employee” to former employees in certain circumstances. It provides:“A reference to an employee in a provision of this Act that applies to an employee at a time after Comcare…has incurred a liability in relation to the employee under this Act includes, unless the contrary intention appears, a reference to a person who has ceased to be an employee.” [emphasis added] There is no dispute that Mr Cook was capable of undertaking the rehabilitation program. The period of the program under consideration is that commencing on 20 November 2015 and ending on 29 February 2016 (referred to as “the rehabilitation program”). The determination under review is an alteration to Mr Cook’s rehabilitation program. The period of the rehabilitation program has expired. The review of this program only has utility if the Tribunal determines to extend the program up to the current time and in the event that it did so, it could determine whether the content of the program should be changed. There is no utility in retrospectively considering the issue.[11][11] Chang v Comcare (1997) (unreported, FCA 97/823, 25 June 1997). The Tribunal notes that Mr Cook does not believe that he is in employment consistent with his skill level and wants the rehabilitation program adjusted and extended to achieve that aim. He has proposed very specific decisions in relation to the terms of the program. Mr Cook put forward comprehensive written submissions to which the Tribunal has had regard. In his oral submissions he indicated that his preference was for Commonwealth employment and he remarked that he was not being supported to obtain Commonwealth employment. [12] [12] He also indicated that he objected to job seeking activities in preference to self-employment but indicated that the self-employment is not now viable and that his only employment options are now private sector or Commonwealth employment.