Fogarty and Comcare - [2007] AATA 2002

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 2002
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2006/001

GENERAL ADMINISTRATIVE DIVISION )

Re LORRAINE FOGARTY

Applicant

And

COMCARE

Respondent

DECISION

Tribunal Mr S. Webb, Member
Date30 November 2007
PlaceCanberra

Decision The decision under review is set aside.
............signed..................................
Mr S. Webb, Member

CATCHWORDS
COMPENSATION - rehabilitation following compensable injury – rehabilitation program - graduated return to work program – determination to amend program – requirement to have regard to relevant factors – applicant’s attitude - deteriorating medical condition and relevant medical information not properly taken into account - decision set aside
Safety, Rehabilitation and Compensation Act 1988 ss 4, 36, 37, 38, 40, 41, 41A
Re Finch and Telstra Corporation Limited [1998] AATA 13130
McGuiness v Comcare [2007] FMCA 1486
Re Peek and Comcare [2007] AATA 1462
R v Toohey; Ex Parte Meneling Station Pty Ltd (1982) 158 CLR 327
Department of Defence v Fox (1997) 24 AAR 171
Comcare v Chang (1996) 24 AAR 120
REASONS FOR DECISION

30 November 2007 Mr S. Webb, Member

1.       Lorraine Fogarty was injured in employment by the Cultural Facilities Corporation of the Australian Capital Territory. She claimed and was paid compensation.[1] She commenced a rehabilitation program that involved a graduated return to work approved by her treating doctors. In due course, the rehabilitation program and return to work plan were amended by the Corporation.[2] Mrs Fogarty was unhappy with the amendment and asked for the matter to be reconsidered by Comcare. The decision to amend the program was affirmed.[3] That reviewable decision is the subject of these proceedings.
[1] T3.
[2] T66.
[3] T81.
2.       I note in passing that Comcare applied to have the matter dismissed, submitting that the application was frivolous or vexatious, as no practical effect could result. The amendment in question concerns a specific period in 2005. The Tribunal rejected Comcare’s application and accepted Mrs Fogarty’s submission that the amendment may have an on-going effect upon her health and rehabilitation.[4] Thus the matter proceeded.
[4] Lorraine Fogarty and Comcare [2007] AATA 1299.
the facts
3.       The relevant facts follow. Mrs Fogarty suffered a mental injury in her employment by the Corporation. On 1 October 2003, she claimed rehabilitation and compensation.[5] This was accepted by Comcare on 30 October 2003, with a deemed injury date of 15 September 2003.[6] Mrs Fogarty was certified unfit for work for a 4 week period by Dr V. Joseph, her treating general practitioner.
[5] T3.
[6] T10.
4.       I note in passing that no issue was taken, nor evidence tendered, concerning the status of the Corporation or its Chief Executive, or relevant employees, for the purposes of Part III Division 2 and 3 of the Act. I will proceed on the basis that the Chief Executive of the Corporation is a ‘rehabilitation authority’.[7]
[7] Note Safety Rehabilitation and Compensation Act 1988: s.4A, the meaning of ‘rehabilitation authority’, ‘Commonwealth authority’, and ‘entity’, at subs 4(1).
5.       On 22 October 2003,…

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 Fogarty and Comcare

Details

AGLC: Fogarty and Comcare [2007] AATA 2002
Case: [2007] AATA 2002
Decision Date: 30 November 2007

CaseChat Overview and Summary

In the matter of Fogarty and Comcare, the Federal Circuit Court was tasked with reviewing a decision made by Comcare regarding a rehabilitation program for the applicant who had suffered a compensable injury. The central dispute revolved around Comcare's decision to amend the rehabilitation program, specifically a graduated return to work program, and the process by which this decision was reached. The applicant contended that the decision to amend the program was flawed as it failed to adequately consider the applicant's attitude towards rehabilitation, the deterioration of the applicant's medical condition, and other relevant medical information.

The primary legal issues before the court involved the interpretation and application of relevant sections of the Safety, Rehabilitation and Compensation Act 1988, particularly sections 4, 36, 37, 38, 40, 41, and 41A. The court had to determine whether Comcare had correctly exercised its discretion in amending the rehabilitation program and if the decision-making process complied with statutory requirements, including the necessity to consider specified factors. The applicant argued that Comcare's determination did not sufficiently address the applicant's attitude and the impact of the deteriorating medical condition, which should have been pivotal in the decision-making process.

The court found that Comcare's decision to amend the rehabilitation program was flawed as it did not properly take into account the applicant's attitude, the deteriorating medical condition, and other relevant medical information. The court emphasised that Comcare is required to have regard to these factors when determining a rehabilitation program. The decision-making process was deemed to be inadequate as it did not reflect a balanced and comprehensive consideration of all relevant aspects. Consequently, the court concluded that the decision to amend the rehabilitation program should be set aside. The court's ruling was grounded in precedents such as Re Finch and Telstra Corporation Limited, McGuiness v Comcare, and Re Peek and Comcare, which underscored the importance of a thorough and balanced approach in decision-making under the Act.

The court ordered that the decision under review be set aside, effectively annulling Comcare's decision to amend the rehabilitation program. This ruling mandates that Comcare reconsider the matter, ensuring that all relevant factors, including the applicant's attitude and the deteriorating medical condition, are properly assessed and taken into account in any future decision regarding the rehabilitation program.

Orders

Orders of the court

The decision under review is set aside.

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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GENERAL ADMINISTRATIVE DIVISION		)
Re		LORRAINE FOGARTY