Darwich and Australian Postal Corporation - [2010] AATA 688

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 688
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/0420

GENERAL ADMINISTRATIVE DIVISION )

Re Tarek Darwich

Applicant

And

Australian Postal Corporation

Respondent

DECISION

Tribunal
M D Allen, Senior Member

Dr M E C Thorpe, Member

Date9 September 2010
PlaceSydney

Decision Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the decision under review is AFFIRMED.

.................[sgd].......................
M D Allen, Presiding Member

CATCHWORDS
WORKERS COMPENSATION. Failure to carry out rehabilitation programme. Was initial failure reasonable. Did failure become reasonable after receipt of later medical reports. Decision under review affirmed.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988, sections 37 and 38.
CASES
Shi v Migration Agents Review Authority (2008) 235 CLR 286
Jebb v Repatriation Commission (1988) 8 AAR 285
Pascoe v Australia Postal Corporation (2004) 77 ALD 464
Re Sambastian and Australian Postal Corporation [2010] AATA 141 distinguished.
REASONS FOR DECISION

9 September 2010 M D Allen, Senior Member
Dr M E C Thorpe, Member

1.      By Application made 2 February 2009 the Applicant sought review of a decision by the Respondent made 15 December 2008 affirming a prior determination to suspend the Applicant’s rights under the Safety, Rehabilitation and Compensation Act 1988 (“SRC”).
2.      On 20 August 2008 the Respondent determined that the Applicant was to undertake a rehabilitation program. That program was to take place at the Respondent’s premises at Milperra Sydney (referred to as the Milperra Hub) and the Applicant was to attend at that place on 23 August 2008 to commence the program.
3.      The Applicant did not attend at the Milperra Hub on 23 August 2008 and has remained absent from work since that time.
4. Section 37 SRC Act states inter alia:
“(1) 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.
…
(7) Where an employee refuses or fails, without reasonable excuse, to undertake a rehabilitation program provided for the employee under this section, the employee’s rights to compensation under this Act, and to institute or continue any proceedings under this Act in relation to compensation, are suspended until the employee begins to undertake the program.
(8) Where an employee’s right to compensation is suspended under subsection (7), compensation is not payable in respect of the period of the suspension.”

Whereas section 38 SRC states:
“(1) As soon as practicable after a rehabilitation authority (other than a relevant authority) makes a determination under section 36 or 37, the authority shall cause to be served on the employee to whom the determination relates a notice in writing setting out:
(a) the terms of the determination;
(b) the reasons for the determination; and
(c) a statement to the effect that the employee may, if dissatisfied with the determination, request Comcare for a review of the determination under this section.

(2) An employee in respect of whom a determination under section 36 or…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Darwich and Australian Postal Corporation

Details

AGLC: Darwich and Australian Postal Corporation [2010] AATA 688
Case: [2010] AATA 688
Decision Date: 9 September 2010

CaseChat Overview and Summary

Darwich brought an appeal against the Australian Postal Corporation, seeking compensation for a work-related injury. The crux of the dispute was whether the Corporation had failed to provide a reasonable rehabilitation program and whether any initial failure became reasonable after receiving later medical reports. The matter was heard in the Administrative Appeals Tribunal (AAT), which was required to review the Corporation's decision and determine the reasonableness of its actions.

The legal issues before the Tribunal were whether the Corporation's initial failure to implement a rehabilitation program was reasonable and if any subsequent failure to provide such a program became reasonable after receiving updated medical reports. The Tribunal needed to assess the reasonableness of the Corporation's actions in light of the evolving medical advice and the statutory obligations imposed on employers under the workers compensation legislation.

The Tribunal affirmed the Corporation's decision, finding that the initial failure to provide a rehabilitation program was reasonable due to the lack of available medical reports at the time. The Tribunal further held that the Corporation's failure to provide a program after receiving later medical reports was also reasonable, as it had acted in accordance with the updated medical advice. The Tribunal concluded that the Corporation had not breached its statutory obligations by not providing a rehabilitation program, as it had reasonably relied on the medical information available to it at the relevant times.

The Tribunal's decision was affirmed under section 43 of the Administrative Appeals Tribunal Act 1975, upholding the Corporation's actions as reasonable and in compliance with the workers compensation legislation.

Orders

Orders of the court

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the decision under review is AFFIRMED.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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