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 level of comfort that would reduce the likelihood of further proceedings.

4. The applicant and respondent reached an agreement with respect to the first decision to implement a rehabilitation program. That decision was set aside by order of the Tribunal dated 12 September 2008 pursuant to s 34D(2) of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”).

5.      The dispute in relation to the second decision, however, was not resolved. Logically, the outcome of the first decision suggests the second decision should also be set aside. Nevertheless, I decided to send the parties to a further alternative dispute resolution process, hoping that they might reach some agreement. I was not involved with the alternative dispute resolution process. I understand the Department of Defence participated, even though it was not formally required to do so. Suffice to say, the process was unsuccessful. That means it is necessary for me to make a formal decision as to the disposition of these proceedings.

6.      Mr Engelhard says I should proceed to hear the matter and examine the conduct of the respondent and the Department of Defence. He appears to be convinced that the Department of Defence is acting in bad faith. He says the doctors consulted in relation to the original rehabilitation program were unlikely to provide an appropriate rehabilitation program given the instructions they had received. He says those same doctors are now being engaged to provide reports for a revised program that would, to use the vernacular, “stitch him up” properly.

7. It is often said that the Tribunal steps into the shoes of the decision-maker. That is true in the sense that the Tribunal has the power under s 25 of the AAT Act to exercise the original decision-maker’s powers under the enactment in question. But the form of the Tribunal’s decision is circumscribed by s 43 which says the Tribunal must either affirm, vary or set aside the decision under review. If the Tribunal sets aside the decision under review, it must either make a decision in substitution or remit the matter for reconsideration by the original decision-maker in accordance with any directions or recommendations the Tribunal sees fit to make.

8.      What form should the decision take in this case? I suppose it is theoretically possible for the Tribunal to vary the reviewable decision in a way that involved the Tribunal calculating the amount of compensation that Mr Engelhard should have received but which was denied to him. But that does not seem practical or even sensible. I could also set aside the decisions but remit them for reconsideration with detailed directions about the way in which that reconsideration should proceed. That does not seem practical or necessary either.

9.      The most sensible course for me to adopt is to set aside the reviewable decision and permit the respondent to calculate Mr Engelhard’s entitlement to compensation. If the applicant takes the view there are shortcomings in that calculation, the calculation can be challenged, and the Tribunal can isolate and consider the complaints at that point. 

10.     

These proceedings can serve no further purpose. They are “frivolous” within the meaning of s 42B of the AAT Act, since I am practically unable to put

Mr Engelhard in a better position given the concession that has been made in relation to Matter No 2007/2451. I have delayed making a final ruling in the vain hope that the parties might be able to reach an arrangement that addressed all of the underlying issues, but that has not occurred.

Conclusion

11. Given the requirement in s 2A of the AAT Act that the Tribunal operate in a way that is “fair, just, economical, informal and quick”, I do not think there is any point in proceeding to a hearing. I am therefore satisfied the decision under review must be set aside. I decide in substitution that the question of Mr Engelhard’s entitlement to compensation (if any) during the period he was denied payment as a result of his decision not to participate in the (now defunct) rehabilitation program shall be remitted to the original decision-maker for reconsideration.

I certify that the 11 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe.

Signed:...............................[Sgd]...............................................
  Michael Buckingham, Associate

Date of Hearing  7 May 2008

Date of Decision  20 March 2009
Applicant was self-represented
Solicitor for the respondent      Dibbs Barker