Cook and Comcare (Compensation)

This matter concerned applications by Mr Cook for review by the Administrative Appeals Tribunal (AAT) concerning decisions relating to rehabilitation programs implemented under section 37 of the *Safety, Rehabilitation and Compensation Act 1988* (SRC Act). Comcare sought the dismissal of these applications.

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.