DVFW and Comcare (Compensation) - [2024] AATA 3051

DVFW and Comcare (Compensation) [2024] AATA 3051 (24 July 2024)
GENERAL DIVISION
File Number(s): 2021/3339
2022/8594
2022/8738
2023/1130
2023/1131
2023/1132

Re:DVFW
APPLICANT

ComcareAnd
RESPONDENT

DECISION
Tribunal:Mr S. Webb, Member
Date:24 July 2024
Place:Canberra

1. The amendments in Part 2, Schedule 3 of the Fair Work Legislative Amendment (Closing Loopholes) Act 2023 are not applicable.
2. As DVFW’s rights to compensation have been suspended under s 57(2) of the Safety, Rehabilitation and Compensation Act 1988, the proceedings in the Tribunal are stayed until the notice issued on 28 May 2024 under s 57(1) of that Act is complied with.
…[SGD]………………………………………
Mr S. Webb, Member
Catchwords
PRACTICE AND PROCEDURE – jurisdiction – suspension of entitlements to compensation in respect of injury – notice of requirement to undergo medical examination – failure to undergo examination – reason for failure not found to be reasonable – suspension of compensation pending compliance – applicability of Fair Work Legislation Amendment (Closing Loopholes) Act 2023 – amendments not applicable – suspension decision not reviewable – Tribunal’s jurisdiction conditioned by reviewable decision – no reviewable decision – no authority to evaluate reasonableness of excuse – proceedings stayed until notice complied with
Legislation
Administrative Appeals Tribunal Act 1975, s 25
Fair Work Legislation Amendment (Closing Loopholes) Act 2023 s 2, Schedule 3
Safety, Rehabilitation and Compensation Act 1988, ss 16, 24, 36, 37, 57, 57A, 60, 61, 62, 64
Cases
Australian Postal Corporation v Nunez [2014] FCA 1095
Plaintiff M47-2012 v Director General of Security [2012] HCA 46
Telstra Corporation Ltd v Administrative Appeals Tribunal [2003] FCA 102

REASONS FOR DECISION
Mr S. Webb, Member
24 July 2024

The Applicant, “DVFW”, successfully claimed compensation in respect of a work injury. Disputation arose over DVFW’s entitlements to compensation in respect of the injury. In a series of determinations and reconsideration decisions, Comcare refused DVFW’s claims for payment of compensation in respect of medical treatment under s 16 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) and permanent impairment under s 24 of the SRC Act. DVFW applied for review of 6 reconsideration decisions by the Tribunal.
In the course of the proceedings, Comcare required DVFW to undergo an independent medical examination. DVFW did not undergo the examination. Comcare decided DVFW did not have a reasonable excuse for the failure to undergo the examination and consequently suspended DVFW’s compensation payments. DVFW does not agree with Comcare’s decision.
In these circumstances, the Tribunal’s jurisdiction to proceed must be determined.
Short facts
On 28 May 2024, Comcare gave written notice to DVFW which included the following:
Pursuant to section 57 of the SRC Act, Comcare requires you to undergo an examination by a legally qualified medical practitioner as follows:
Practitioner: Dr Patricia Jungfer, Psychiatrist
Time/Date: Monday, 3 June 2024 at 1:30pm
Mode: By video
The medical examination with Dr Jungfer on 3 June 2024 (the Examination) has been arranged in relation to your claim for compensation for the accepted condition generally and…

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 DVFW and Comcare (Compensation)

Details

AGLC: DVFW and Comcare (Compensation) [2024] AATA 3051
Case: [2024] AATA 3051
Decision Date: 24 July 2024

CaseChat Overview and Summary

This matter concerned an application by DVFW for review of a decision by Comcare to suspend compensation entitlements. Comcare had issued a notice requiring DVFW to undergo a medical examination by a psychiatrist on 3 June 2024, pursuant to section 57 of the *Safety, Rehabilitation and Compensation Act 1975* (SRC Act). DVFW failed to attend this examination. Subsequently, on 20 June 2024, Comcare issued a decision formally suspending DVFW's compensation rights under section 57(2) of the SRC Act until the examination took place, on the basis that DVFW had failed to undergo the examination without reasonable excuse. The Administrative Appeals Tribunal (Tribunal) was required to determine its jurisdiction in relation to this matter.

The primary legal issues before the Tribunal were whether the amendments introduced by the *Fair Work Legislation Amendment (Closing Loopholes) Act 2023* were applicable to the present circumstances, and consequently, what jurisdiction the Tribunal possessed to consider the reasonableness of DVFW's excuse for failing to attend the medical examination. The Tribunal was tasked with determining whether it had the authority to evaluate the reasonableness of DVFW's failure to undergo the examination, or if its jurisdiction was limited to reviewing a decision that was itself reviewable under the SRC Act.

The Tribunal reasoned that its jurisdiction is conferred by statute, specifically section 25 of the *Administrative Appeals Tribunal Act 1975*. It found that the *Fair Work Legislation Amendment (Closing Loopholes) Act 2023* did not apply retrospectively to the circumstances of this case. The Tribunal concluded that the decision to suspend compensation under section 57(2) of the SRC Act was not a reviewable decision in itself. Instead, the Tribunal's jurisdiction was conditioned by the existence of a reviewable decision made under the SRC Act. As the suspension decision was not a decision that DVFW was entitled to have reviewed by the Tribunal, the Tribunal lacked the authority to evaluate the reasonableness of DVFW's excuse for not attending the medical examination.

Consequently, the Tribunal ordered that the proceedings be stayed until DVFW complied with the notice to undergo the medical examination.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

In these circumstances, the Tribunal’s jurisdiction to proceed must be determined. Short facts On 28 May 2024, Comcare gave written notice to DVFW which included the following:Pursuant to section 57 of the SRC Act, Comcare requires you to undergo an examination by a legally qualified medical practitioner as follows:Practitioner: Dr Patricia Jungfer, PsychiatristTime/Date: Monday, 3 June 2024 at 1:30pmMode: By videoThe medical examination with Dr Jungfer on 3 June 2024 (the Examination) has been arranged in relation to your claim for compensation for the accepted condition generally and to address the issues that are before the Administrative Appeals Tribunal (Tribunal) in applications 2021/3339, 2022/8594, 2022/8738, 2023/1130, 2023/1131 and 2023/1132. …Should you not attend the Examination, or in any way obstruct the Examination, please provide Sparke Helmore or Comcare with any explanation or evidence you wish to present as your excuse by no later than 5pm on 10 June 2024. Comcare may proceed to make a decision under s 57(2) of the SRC Act on or after 11 June 2024 without reverting to you again, and based only on the information it has before it as at 5pm on 10 June 2024.Please note that pursuant to s 57(5) of the SRC Act, where an employee’s right to compensation is suspended under s 57(2), compensation is not payable in respect of the period of the suspension.[1][1] Exhibit 1, item 1.1. On 3 June 2024, DVFW did not attend the appointment with Dr Jungfer. I understand DVFW’s support person was not available, but there may have been other reasons for the failure to attend. The reasonableness of DVFW’s failure to undergo the examination is not the subject of this decision. On 7 June 2024, Comcare informed DVFW of its preliminary view that “your apparent choice to not make arrangements for a support person at the Examination on 3 June 2024 may not constitute a reasonable excuse for non-attendance”.[2][2] Ibid, Item 1.2, page 4. On 14 June 2024, the Tribunal listed a directions hearing on 21 June 2024. On 20 June 2024, Comcare issued the following decision:I conclude, in relation to the accepted condition, that: (1) You made a claim for compensation under s 54 of the SRC Act. (2) Comcare decided under s 57 of the SRC Act that you were required to undergo an examination by a legally qualified medical practitioner nominated by Comcare, being an examination with Dr Patricia Jungfer, psychiatrist (the s 57(1) Decision). The s 57(1) Decision was made on 28 May 2024 and was sent to you by email on 28 May 2024. (3) The s 57(1) Decision creates an ongoing requirement for you to undergo an examination with Dr Patricia Jungfer, psychiatrist, unless the decision is revoked. The s 57(1) Decision has not been revoked. (4) Arrangements were made for you to undergo the examination required by the s 57(1) Decision on 3 June 2024 at 1.30pm (Examination arranged for 3 June 2024). (5) You failed, without reasonable excuse, to undergo an Examination arranged for 3 June 2024. (6) The s 57(1) Decision continues to require you to attend the examination with Dr Jungfer. (7) Under s 57(2) of the SRC Act your rights to compensation under the SRC Act, in relation to the accepted condition, and to institute or continue any proceedings under the SRC Act in relation to compensation, are suspended until the examination with Dr Jungfer takes place (the suspension). (8) The suspension will operate from the calendar day after this letter is sent to you at your usual email address for correspondence which you have continued to use for electronic communications with Comcare and its representatives up to and including 12 June 2024, being: [XXX](9) I have authorised this letter to be sent to you by email on 20 June 2024. Your compensation payments will therefore continue until COB 20 June 2024 and thereafter be suspended.[3] [3] Ibid, letter dated 20 June 2024.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

On 20 June 2024, Comcare issued the following decision:I conclude, in relation to the accepted condition, that: (1) You made a claim for compensation under s 54 of the SRC Act. (2) Comcare decided under s 57 of the SRC Act that you were required to undergo an examination by a legally qualified medical practitioner nominated by Comcare, being an examination with Dr Patricia Jungfer, psychiatrist (the s 57(1) Decision). The s 57(1) Decision was made on 28 May 2024 and was sent to you by email on 28 May 2024. (3) The s 57(1) Decision creates an ongoing requirement for you to undergo an examination with Dr Patricia Jungfer, psychiatrist, unless the decision is revoked. The s 57(1) Decision has not been revoked. (4) Arrangements were made for you to undergo the examination required by the s 57(1) Decision on 3 June 2024 at 1.30pm (Examination arranged for 3 June 2024). (5) You failed, without reasonable excuse, to undergo an Examination arranged for 3 June 2024. (6) The s 57(1) Decision continues to require you to attend the examination with Dr Jungfer. (7) Under s 57(2) of the SRC Act your rights to compensation under the SRC Act, in relation to the accepted condition, and to institute or continue any proceedings under the SRC Act in relation to compensation, are suspended until the examination with Dr Jungfer takes place (the suspension). (8) The suspension will operate from the calendar day after this letter is sent to you at your usual email address for correspondence which you have continued to use for electronic communications with Comcare and its representatives up to and including 12 June 2024, being: [XXX](9) I have authorised this letter to be sent to you by email on 20 June 2024. Your compensation payments will therefore continue until COB 20 June 2024 and thereafter be suspended.[3] [3] Ibid, letter dated 20 June 2024. The Tribunal rescheduled the directions hearing to 28 June 2024. The parties were directed to provide written submissions addressing the Tribunal’s jurisdiction to consider whether or not DVFW had a reasonable excuse for failing to undergo the medical examination on 3 June 2024. Each party made written submissions and addressed the applicability of amendments to the SRC Act following passage of the Fair Work Legislative Amendment (Closing Loopholes) Act 2023 (FWLA Act). The question of applicability was heard during an interlocutory hearing before me on 8 July 2024. Two issues arise for determination: a question of legislative construction, and the jurisdiction of the Tribunal.Legislation The Tribunal’s jurisdiction is conferred by legislation. Section 25 of the Administrative Appeals Tribunal Act 1975 (AAT Act) provides for applications to be made to the Tribunal:(1) An enactment may provide that applications may be made to the Tribunal:(a)for review of decisions made in the exercise of powers conferred by that enactment; or(b)for the review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.