Cook and Comcare (Compensation) [2016] AATA 371 (6 May 2016)
Division
GENERAL DIVISION
File Numbers
2015/4149
2015/6430
2015/6440
Re
Tristan Cook
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Deputy President K Bean
Date 6 May 2016 Date of written reasons 3 June 2016 Place Adelaide Pursuant to subsection 42B(1) of the Administrative Appeals Tribunal Act1975, the Tribunal dismisses the within applications for review.
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Deputy President K Bean
CATCHWORDS
PRACTICE AND PROCEDURE – Application for dismissal pursuant to section 42B – Decisions relating to rehabilitation programs implemented pursuant to section 37 of the Safety, Rehabilitation and Compensation Act 1988 – No practical purpose served by review of expired rehabilitation programs – Overtaken by more recent rehabilitation program which is before the Tribunal – Applicant seeking higher amount of incapacity payments – Tribunal does not have jurisdiction with respect to incapacity payments – Applications dismissed.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988, s 37
Administrative Appeals Tribunal Act 1975, subs 42B(1)
CASES
Re Daff and Comcare [2010] AATA 732
Re Griffiths and Telstra Corporation Limited [2013] AATA 695
Re Fogarty and Comcare [2007] AATA 1299
REASONS FOR DECISION
Deputy President K Bean
3 June 2016
Until November 2013 the applicant, Mr Cook, was employed in a senior role with the Department of Defence. I understand he accepted a separation package which resulted in his employment with the Department being terminated on 15 November 2013.
Unfortunately, during 2012, prior to the termination of his employment, Mr Cook sustained an injury, namely a major depressive disorder (recurrent episode), for which compensation liability has been accepted.
There is no dispute in the context of these applications that, at all relevant times, the respondent, Comcare, has been liable to pay compensation to Mr Cook. The three applications currently before me relate to rehabilitation programs developed and implemented pursuant to s 37 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act). All three applications relate to the correctness of decisions made with respect to those rehabilitation programs.
None of the three applications has yet proceeded to a substantive hearing. However, on 25 February 2016, Comcare’s solicitor, Mr MacGregor, wrote to the Tribunal requesting that all three applications be dismissed pursuant to subs 42B(1) of the Administrative Appeals Tribunal Act 1975 (the AAT Act), on the grounds that they were lacking in substance, were misconceived, or had no reasonable prospect of success. A hearing accordingly took place with respect to that application on 23 March 2016, at which both parties made oral submissions.
Subsequent to that hearing, the Tribunal sought further submissions from the parties and a further hearing was held on 20 April 2016. Both parties also provided additional material and written submissions either prior to or after that resumed hearing.
On 6 May 2016, I gave my Decision on the respondent’s application, together with oral Reasons. On 11 May 2016, the respondent requested written Reasons, and these Reasons have been prepared in answer to that request.
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- AGLC
- Cook and Comcare (Compensation) [2016] AATA 371
- Case
- [2016] AATA 371
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the Tribunal was whether it had jurisdiction to review the appropriate level of incapacity payments, particularly in relation to subsection 37(5) of the SRC Act, and whether the review of expired rehabilitation programs served any practical purpose given a more recent program was already before the Tribunal.
The Tribunal determined that it lacked jurisdiction to consider Mr Cook's claim for higher incapacity payments under subsection 37(5). This was because subsection 37(5) provides an alternative basis for calculating incapacity payments only where compensation would otherwise be payable under sections 19 or 31 of the SRC Act, not where payments are calculated under section 20, as was the case for Mr Cook. Furthermore, Mr Cook had not made a primary claim for payments under subsection 37(5) nor had he sought reconsideration of the separate determinations made by Comcare regarding his incapacity payments under section 20. The Tribunal also noted that the review of expired rehabilitation programs was moot, as a more recent program was already under consideration.
Consequently, the Tribunal dismissed the three applications for review pursuant to section 42B of the *Administrative Appeals Tribunal Act 1975*. However, a subsequent application by Mr Cook, 2016/1492, was not affected by this decision and remained on foot.
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
Ratio Decidendi
Legal Principle Established
In relation to this last issue, Mr MacGregor contended that the Tribunal had no jurisdiction to review the question of the appropriate level of incapacity payments, whether pursuant to s 20 or subs 37(5), as there was no reviewable decision before the Tribunal relating to those issues. He further contended that Mr Cook’s submissions on this issue were incorrect and misconceived, since even if subs 37(5) applied to his circumstances, it would not lead to him being paid any higher amount by way of incapacity payments.CONSIDERATION As the possibility of payments being made under subs 37(5) is in effect the main reason for Mr Cook seeking to maintain these applications, I will address this issue first. Having carefully considered whether this issue in effect lends substance to one or more of the applications such that they should not be dismissed, I have ultimately concluded that it does not. There are several reasons for that conclusion, which I will set out in order of their importance:(a)I am satisfied that the Tribunal clearly would not have jurisdiction in the context of any of these three applications to consider whether incapacity payments should be made to Mr Cook under subs 37(5). That is because, as Mr MacGregor has pointed out, throughout the relevant period Comcare made separate determinations with respect to Mr Cook’s entitlement to incapacity payments, under s 20 of the SRC Act. I accept Mr MacGregor’s submission that in order to seek incapacity payments under subs 37(5), Mr Cook needed to either make a primary claim for those payments, or seek reconsideration of the incapacity determinations made under s 20, on the basis that he was entitled to a different or additional amount under subs 37(5). (b)I further accept Mr MacGregor’s contention that there is no foundation in the Act for a conclusion that subs 37(5) provides for additional incapacity payments to be made over and above those payable under s 20. Subsection 37(5) provides an alternative basis for the calculation of incapacity payments, where ss 19 or 31 would otherwise apply. It follows that if subs 37(5) could also be read as mandating a mechanism for calculating incapacity payments during the currency of a rehabilitation program where s 20 would otherwise apply, then subs 37(5) would dis-apply s 20, and incapacity payments during the currency of the program would be calculated under subs 37(5).(c)However, as pointed out by the Tribunal in Re Daff and Comcare[2], subs 37(5) applies only to an employee who would otherwise be entitled to compensation under ss 19 or 31. It does not apply to an employee such as Mr Cook whose incapacity payments would otherwise be calculated under s 20.[2] Re Daff and Comcare [2010] AATA 732. I acknowledge that in his correspondence with the relevant delegates in the context of the rehabilitation programs, particularly in application 2015/4149, Mr Cook made reference to subs 37(5). However, in circumstances where separate determinations had been made with respect to incapacity entitlements, those references were clearly not sufficient in my view to amount to a request for reconsideration of those determinations, or bring the subs 37(5) issue before any of the delegates who were reconsidering his rehabilitation programs, where the primary determinations did not in any way address the issue of incapacity payments. If Mr Cook wanted the incapacity determinations reconsidered, he needed to clearly identify which determinations he sought reconsideration of, the periods to which his request related and the reasons for this request/s. Alternatively, he needed to make a primary claim for payments under subs 37(5).