Englehard and Comcare

[2009] AATA 194

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 194

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/2395

GENERAL ADMINISTRATIVE DIVISION		)
Re		CONRAD ENGELHARD

Applicant

And COMCARE

Respondent

DECISION

Tribunal Senior Member Bernard J McCabe

Date20 March 2009

PlaceBrisbane (heard in Perth)

Decision The Tribunal sets aside the reviewable decision and remits the matter to the respondent for reconsideration in accordance with these reasons.

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

Senior Member

CATCHWORDS

WORKERS’ COMPENSATION – Injury – Refusal to undertake rehabilitation program – Suspension of compensation – Whether compensation should be suspended – Respondent concedes rehabilitation program flawed – Respondent also concedes suspension of compensation flawed – Whether applicant entitled to continue proceedings – Tribunal unable to offer meaningful scrutiny of old rehabilitation program – Open to applicant to challenge new rehabilitation program when finalised – Decision set aside and remitted

Administrative Appeals Tribunal Act 1975 (Cth) ss 2A, 25, 42B, 43

Safety, Rehabilitation and Compensation Act 1988 (Cth) s 37(7)

McGuinness v Comcare [2007] FMCA 1486; (2007) 99 ALD 57

REASONS FOR DECISION

20 March 2009 Senior Member Bernard J McCabe         

1.      

Mr Conrad Engelhard, the applicant, was injured in the course of his employment with the Department of Defence. Comcare, the respondent, accepted liability for his injuries. The Department of Defence subsequently determined that Mr Engelhard should undertake a rehabilitation program that commenced on 9 October 2006. Mr Engelhard took objection to the program, and his employer determined that his entitlement to compensation for his injuries should be suspended pursuant to

s 37(7) of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”).

2.      

Mr Engelhard asked the Tribunal to review the two determinations. The matter was set down for a hearing in May 2008. At the outset of the hearing, Comcare conceded there was a flaw in the determination that Mr Engelhard was required to undertake a rehabilitation program. It turns out the employer had not consulted with Mr Engelhard or his medical practitioner to ascertain their attitudes towards the program. I was referred to the decision in McGuinness v Comcare

[2007] FMCA 1486; (2007) 99 ALD 57, which suggests the reviewable decision must be set aside. I agree. Given that concession, Comcare properly acknowledged a flaw in the subsequent decision to suspend Mr Engelhard’s entitlements for failing to participate in the program as required. Comcare asked that I set aside both decisions. Comcare and the Department of Defence intend formulating a rehabilitation program that satisfied the requirements under the Act. But Mr Engelhard did not agree.

3.      The hearing did not proceed in May 2008 because I thought there was a possibility of addressing the underlying dispute between the parties (and the Department of Defence, which was not a party to the proceedings) through an alternative dispute resolution process. In particular, I was hopeful that the parties might be able to reach an understanding over the way in which the revised rehabilitation program would be prepared. That understanding would hopefully provide Mr Engelhard with a…