FRANK ROBERTS and COMCARE

[2009] AATA 329

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 329

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/0263
  )          No 2007/2197

GENERAL ADMINISTRATIVE DIVISION		)
Re		FRANK ROBERTS

Applicant

And COMCARE

Respondent

DECISION

Tribunal Ms Robin Hunt, Senior Member
Dr Maxwell Thorpe, Member

Date11 May 2009

PlaceSydney

Decision The decisions under review are affirmed.

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

Dr Maxwell Thorpe
  Member
  for self and Ms Robin Hunt, Senior Member

CATCHWORDS

COMPENSATION – Safety, Rehabilitation and Compensation Act – rehabilitation program – determination made that applicant should participate in a rehabilitation program – applicant failed to undertake rehabilitation program created – no failure by authority to consider applicant’s attitude – no reasonable excuse for refusing or failing to undertake rehabilitation program – decisions under review affirmed.

Safety, Rehabilitation and Compensation Act 1988 ss 4(1), 37(1), 37(3), 37(3)(f), 37(7), 38(2)

Australian Postal Corporation v Forgie (2003) 130 FCR 279

McGuinness v Comcare (2007) 214 FLR 56

Pascoe v Australian Postal Corporation (2004) 38 AAR 314

REASONS FOR DECISION

11 May 2009	Ms Robin Hunt, Senior Member Dr Maxwell Thorpe, Member
introduction

1.      Frank Roberts was an employee of the Refugee Review Tribunal (‘RRT’), who sustained a mental injury in the course of his employment, on or about 10 May 2005. He remained at work, but was then determined medically unfit to continue. Comcare liability for post traumatic stress disorder (‘PTSD’) on 11 July 2005.

2.      Mr Roberts has remained on compensation leave and in receipt of incapacity payments. Several return to work programs have been organised without success. The most recent return to work rehabilitation program, and the subject of this review, was organised for Mr Roberts’ return on 23 November 2006. Mr Roberts did not avail himself of the program and his benefits ceased on 8 December 2006 for failure to participate in a rehabilitation program, involving a graduated return to work. He is now seeking review of two decisions:

In respect of Application 2007/0263

The reviewable decision dated 30 January 2007 that affirmed a determination dated 8 December 2006 that the applicant had failed or refused, without reasonable excuse, to undertake a rehabilitation program and as a result, his rights to compensation under the Safety, Rehabilitation and Compensation Act 1988 (‘the SRC Act’) were suspended.

In respect of Application 2007/2197

The reviewable decision dated 19 May 2007 that affirmed a determination dated 20 November 2006 that the applicant should participate in a rehabilitation program commencing on 23 November 2006 in which he would return to work performing similar duties to his pre-injury duties in a new workplace.

3. The RRT is the relevant rehabilitation authority under subsection 4(1) of the SRC Act. Subsection 37(1) provides for a rehabilitation authority to make a determination that an injured employee should undertake a rehabilitation program. Subsection 37(3) provides that the rehabilitation authority must consider factors set out in the subsection, including paragraph (f), “the employee’s attitude to the program”. Subsection 37(7) provides that, where an employee refuses…