Indrani Sinnaiah and Australian Postal Corporation

[2012] AATA 891

[2012] AATA 891  

Division	GENERAL ADMINISTRATIVE DIVISION
File Numbers	2011/2909, 4462, 2012/2726, 3994 & 4191
Re	Indrani Sinnaiah
APPLICANT
And	Australian Postal Corporation
RESPONDENT

DECISION

Tribunal	Hon Brian Tamberlin, QC, Deputy President and Mr S Webb, Senior Member
Date	18 December 2012
Place	Canberra

The Tribunal orders that it has jurisdiction to proceed in applications 2011/2909, 2011/4662, 2012/2726, 2012/3994 and 2012/4191. Each application is referred to the District Registrar to progress, as appropriate, to hearing.

............................[sgd]...................................

Hon Brian Tamberlin, QC, Deputy President and

CATCHWORDS

JURISDICTION – interpretation – meaning and effect of s 37(7) of the Safety Rehabilitation and Compensation Act 1988 – whether a general or specific suspension of Applicant's rights to compensation and institution or continuance of proceedings – rehabilitation program determined in respect of an injury – suspension applies in respect of the injury specified in the rehabilitation program notice but not otherwise – jurisdiction to proceed.

COMPENSATION – accepted back injury and right shoulder injury – liability for other injuries denied – claim for compensation in respect of medical treatment and incapacity for work resulting from back injury – rehabilitation program determined in respect of right shoulder injury – failure to undertake rehabilitation program – suspension – application for review – effect of suspension on other proceedings – suspension applies to compensation and proceedings in respect of the right shoulder injury  – no bar to applications proceeding - order made

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 36, 37, 38

Acts Interpretation Act 1901 (Cth) s 15AA

CASES

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321

Australian Postal Corporation v Forgie [2003] FCAFC 223

Australian Postal Corporation v Pascoe [2003] FCA 390

Bropho v Western Australia [1990] HCA 24

Bruce v Cole (1998) 45 NSWLR 163

Canute v Comcare (2006) 226 CLR 535

Re Ching and Australian Postal Corporation [2007] AATA 1089

Chowdhary v Bayne [1999] FCA 41

Coco v R [1994] HCA 15

Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297

Re Corrie and Comcare [2009] AATA 203

Re Englehard and Comcare [2009] AATA 194

Re Evans and Comcare [2008] AATA 1147

Re Fairweather and Australian Postal Corporation [2009] AATA 503

Fellowes v Military Rehabilitation and Compensation Commission [2009] HCA 38

McGuinness v Comcare Australia [2007] FMCA 1486

Re Mihaljcic and Linfox Australia Pty Ltd [2010] AATA 599

Pascoe v Australian Postal Corporation [2004] FCAFC 4

Plaintiff M47-2012 v Director General of Security [2012] HCA 46

Plaintiff M70/2011 v Minister for Immigration and Citizenship & Anor Defendants [2011] HCA 32

Ringrow Pty Ltd v BP Australia Pty Ltd [2005] HCA 71

SECONDARY MATERIALS

Commonwealth Employees' Rehabilitation and Compensation Bill 1988, Second Reading Speech, The Hon. Brian Howe, 27 April 1988

Safety, Rehabilitation and Compensation Amendment Bill 2011, Explanatory Memorandum

REASONS FOR DECISION

Hon Brian Tamberlin, QC, Deputy President and
Mr S Webb, Senior Member

18 December 2012

1. Indrani Sinnaiah is an employee of the Australian Postal Corporation (Australia Post). She sustained a number of injuries in the course of her employment. She and Australia Post are presently in dispute about her entitlements to compensation, including in respect of a number of fresh injury claims.

2. Presently, she has made five applications under s 64 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act) for review of reconsideration decisions –

   (a)Application 2011/2909 is for review of a reconsideration decision accepting liability under s 14 of the SRC Act for a right shoulder injury, but denying liability for other claimed injuries affecting Ms Sinnaiah’s right hand, neck, lower back, upper back, left hand and elbow.

   (b)Application 2011/4462 is for review of a reconsideration decision denying present liability to pay compensation for medical treatment expenses under s 16 and weekly incapacity payments under s 19 (or related sections) in respect of a previously accepted lower back injury.

   (c)Application 2012/2726 is for review of a reconsideration decision denying liability under s 14 for a claimed ‘secondary severe depression’ injury.

   (d)Application 2012/3994 is for review of a reconsideration decision requiring Ms Sinnaiah to undertake a rehabilitation program in respect of an accepted right shoulder injury.

   (e)Application 2012/4191 is for review of a reconsideration decision that she did not have a reasonable excuse for her failure to undertake the rehabilitation program, resulting in suspension of her rights to compensation under s 37(7).

3. The matters were listed for interlocutory hearing on 14 November 2012 to deal with jurisdiction and procedural issues relating to the suspension application. The parties have requested all applications to proceed to hearing together, with the suspension issue being dealt with first at hearing – if the suspension is set aside, then the other applications would be dealt with. This may be an efficient and practical approach that has been adopted in some previous cases before the Tribunal[1], but it is one that raises issues of construction, jurisdiction and procedure.

   [1] McGuinness v Comcare Australia [2007] FMCA 1486; Re Corrie and Comcare [2009] AATA 203; see also Re Evans and Comcare [2008] AATA 1147, Re Fairweather and Australian Postal Corporation [2009] AATA 503, and Re Englehard and Comcare [2009] AATA 194.

4. We must consider the effect, if any, of Australia Post’s suspension decision under s 37(7) on Ms Sinnaiah’s applications before the Tribunal.

5. On 9 July 2012 a delegate of Australia Post made a determination under s 37(1) of the SRC Act[2] that Ms Sinnaiah should commence rehabilitation as required by a program dated 6 July 2012.  The content of the program related to a claim in respect of an injury on 28 February 2011 in respect of which the accepted claim condition and the subject of rehabilitation requirement was “#right rotator cuff irritation with pain in the proximal arm and right shoulder region”[3].

   [2] T93.

   [3] Ibid.

6. Ms Sinnaiah has failed to participate in the program. The delegate of Australia Post determined pursuant to s 37(7) of the SRC Act that as from 2 August 2012 her entitlement to compensation was suspended until such time as she begins to undertake the rehabilitation program[4].

   [4] T108.

7. The decisions of 9 July and 2 August 2012 were reconsidered by Australia Post and by letter of 11 September 2012 she was notified that the earlier decisions were affirmed[5].

   [5] T115.

8. We note that Ms Sinnaiah has not applied for a stay of Australia Post’s decision to suspend her entitlement to compensation.

   ISSUE

9. The matter raised and considered in the reasons goes to jurisdiction to initiate or hear any matters referred to in [2] above, more specifically the issue whether a suspension under s 37(7) of the SRC Act suspends the applicant’s rights to compensation under the SRC Act generally, and her right to institute or commence or continue any proceedings under the SRC Act in relation to compensation, or whether s 37(7) should be read such that suspension solely applies to the injury or claim under consideration in application 2012/4191.

10. Australia Post contends that s 37(7) can and should not be “read down” and that the suspension applies to all of the Applicant’s claims and proceedings under the SRC Act. Ms Sinnaiah submits that the suspension is only in respect of rights relating to the injury the subject of the specific rehabilitation program in respect of which there has been a failure or refusal.

    LEGAL FRAMEWORK

11. Section 37 of the SRC Act relevantly provides:

    37  Provision of rehabilitation programs

    (1)A rehabilitation authority may make a determination that an employee who has suffered an injury resulting in an incapacity for work or an impairment should undertake a rehabilitation program.

    […]

    (5)Where an employee is undertaking a rehabilitation program under this section, compensation is not payable to the employee under section 19 or 31 but:

    (a)     if the employee is undertaking a full‑time program—compensation is payable to the person of an amount per week equal to the amount per week of the compensation that would, but for this subsection, have been payable under section 19 if the incapacity referred to in that section had continued throughout the period of the program; or

    (b)     if the employee is undertaking a part‑time program—compensation is payable to the employee of such amount per week as the relevant authority determines, being an amount not less than the amount per week of the compensation that, but for this subsection, would have been payable to the employee under this Act and not greater than the amount per week of the compensation that would have been payable under paragraph (a) if the employee had been undertaking a full‑time program.

    […]

    (7)Where an employee refuses or fails, without reasonable excuse, to undertake a rehabilitation program provided for the employee under this section, the employee’s rights to compensation under this Act, and to institute or continue any proceedings under this Act in relation to compensation, are suspended until the employee begins to undertake the program.  (Emphasis added).

12. Section 15AA of the Acts Interpretation Act 1901 (Cth) (the AI Act) provides that the interpretation that would best achieve the purpose or object of the Act, whether or not that purpose or object is expressly stated in the Act, is to be preferred to every other interpretation.

    SUBMISSIONS BY AUSTRALIA POST

13. Australia Post submits that, having regard to the plain language of s 37(7) and its clear purpose, all rights to initiate or continue any compensation proceedings are suspended where in respect of any injury or claim there is a failure or refusal to undertake a rehabilitation program without reasonable excuse.

14. Australia Post draws attention to the generality in the language of s 37(7) in referring to “a rehabilitation program provided for an employee under this section” and also points to the references to “rights” in the plural and to the general expression “any proceedings” under the SRC Act and says that these words require a broad general application of the suspension and disclose an intention to give the suspension a broad general operation. Such an approach would provide a strong incentive to undertake the rehabilitation program.

15. Australia Post also submits that if the purpose was only to suspend rights in relation to the specific injury subject of the rehabilitation plan, then it would have been a simple matter to have used the definite particle and referred to “the rehabilitation program” or “the proceedings” or “the” right rather than use the more general references in the form of the indefinite article.  Reliance is also placed on the reference to “rights” being used in the plural.  Further, it submits that the interpretation advanced by Ms Sinnaiah necessitates a significant modification of the specific language in circumstances where there is no justification for adding to or qualifying the broad general references to “rights” in “any” proceedings.

16. Australia Post seeks support from the reference to the Second Reading Speech in the House of Representatives of 27 April 1988[6] when the Bill, which later became the Act, was introduced.  In that Speech the Minister referred to a better range of benefits for employees and incentives for injured employees to return to work as soon as possible.  In referring to broader powers of the Commission to provide rehabilitation programs the Minister said:

    If an employee refuses to undertake a rehabilitation program, his or her rights to compensation will be suspended.  On the other hand, employing agencies will be required to take all reasonable steps to provide suitable employment for employees who have undertaken rehabilitation programs.[7]

    [6] Commonwealth Employees' Rehabilitation and Compensation Bill 1988, Second Reading Speech, The Hon. Brian Howe, 27 April 1988.

    [7] Ibid, at 2192.

17. This Speech is said to support the broader interpretation as to the operation of the suspension as contended for by Australia Post.  It is also said to be consistent with the objective of reducing the overall cost of compensation and the placing of primary emphasis on rehabilitation and return to work.  We do not agree.  The Speech is equivocal.

18. In 2011 an amendment was made to the SRC Act by adding subs 37(7A), which provides that:

    However, subsection (7) does not operate to suspend the employee’s right to compensation for the cost of medical treatment that is payable under section 16.

19. Australia Post contends that the purpose of this amendment was to remove the counter-productive effects of the removal of medical treatment upon effective rehabilitation and early return to work, and say this is expressed in the Explanatory Memorandum[8] to the Amending Bill.  Therefore, this amendment reinforces the position taken by Australia Post. 

    [8] Safety, Rehabilitation and Compensation Amendment Bill 2011, Explanatory Memorandum

20. We do not consider that this amendment assists in the interpretation of s 37(7) because it is equally consistent with a suspension relating solely to a particular rehabilitation plan in relation to a specific injury. In addition, for reasons given above, we consider that when read in context it is clear that the suspension provision only operates with respect to the particular rehabilitation plan and therefore there is no necessity to resort to the use of any extrinsic material. Furthermore, in the circumstances of the present case we do not consider that the amending provision in 2011 is indicative of the intention and purpose of the SRC Act as framed prior to the amendment. The amendment rather serves to clarify and reinforce the conclusion that the suspension was not framed to operate in respect of other injuries which are not relevant to the particular rehabilitation plan in question.

21. The express intentions of the amendment are to “allow compensation for medical expenses to be paid, where payment of other compensation is suspended”[9] and to remove “counterproductive effects” of suspension of compensation for medical expenses on “early rehabilitation and return to work”[10]. We simply note that, as with all compensation under the SRC Act, compensation for medical expenses is payable in respect of an injury. The word “other” is relational, and in this context it connotes heads of compensation entitlement other than medical expenses in respect of an injury. It is clear enough that the shortcoming the amendment was intended to rectify is the adverse effect on an injured employee’s prospects of returning to rehabilitation or to work of denying compensation for medical treatment in respect of an injury. There is no support here for the general suspension for which Australia Post contends.

    [9] Ibid, page i.

    [10] Ibid, page 4.

    CONSTRUCTION

22. Section 37(7) operates with respect to a rehabilitation program determined under s 37(1). In this case the rehabilitation program is injury-specific, being specific to the injury suffered on 28 February 2011 in respect of “right rotator cuff irritation with pain in proximal arm and right shoulder region”.  It does not refer to nor is it relevant to any other injury claim.

23. In Canute v Comcare[11] the High Court points out that the concept of an “injury” is a term of “pivotal importance” in the structure of the SRC Act. At [10] their Honours say:

    At this juncture, three things may be observed about the concept of “an injury”.  First, the Act does not oblige Comcare to pay compensation in respect of an employee’s impairment; it is liable to pay compensation in respect of “the injury”.  Secondly, the term “injury” is not used in the Act in the sense of “workplace accident”.  The definition of “injury” is expressed in terms of the resultant effect of an incident or ailment upon the employee’s body.  Thirdly, the term “injury” is not used in a global sense to describe the general condition of the employee following the incident.  The Act refers disjunctively to “disease” or “physical or mental” injuries and, at least to that extent, it assumes that an employee may sustain more than on “injury”.

    [11] (2006) 226 CLR 535.

24. At [15] the court refers to the centrality of the expression “an injury” to the scheme upon which Comcare’s liability to compensate depends. The synchronous operation of Parts II, III and V of the SRC Act, in respect of the plural rights, entitlements and obligations of an injured employee and the rights, discretions and obligations of the relevant authority, the rehabilitation authority and the employer, apply in respect of an injury as defined in s 5A. In the absence of an injury to an employee, these Parts of the Act have no work to do.

25. Under these Parts of the Act, the employee’s rights are to claim and obtain compensation in respect of an injury and, where the injury results in incapacity for work or an impairment, to request and obtain an assessment of his or her capability of undertaking a rehabilitation program.

26. Once a threshold of liability has been determined under s 14, being a gateway provision, compensation in respect of the injury is determined under particular heads of entitlement relating to incapacity for work, medical treatment expenses, permanent impairment, non-economic loss, and household and attendant care services. While use the indefinite article in the term “an injury” in s 14, s 16, s 19 and s 24, reinforces the conclusion that an employee may suffer more than one injury, the related use of the definite article in s 16, s 19 and s 24 clearly directs that compensation is payable in respect of “the injury”. Where more than one injury occurs, compensation is payable in respect of the consequences of each injury under applicable heads of entitlement[12].

    [12] Fellowes v Military Rehabilitation and Compensation Commission [2009] HCA 38, per Hayne, Heydon, Crennan Kiefel and Bell JJ at [16] to [21].

27. The pivotal importance of an injury also applies in respect of rehabilitation.

28. Section 36(1) provides for the making of an assessment of the employee’s capability of undertaking a rehabilitation program where the employee suffers an injury resulting in an incapacity for work or an impairment. Section 37(1) provides for the making of a determination that an employee who has suffered an injury resulting in an incapacity for work or ­an impairment should undertake a rehabilitation program. As can be seen, the discretion to make a determination under s 36(1) or s 37(1) is essentially preconditioned by “an employee who has suffered an injury resulting in an incapacity for work or an impairment” (emphasis added). These provisions point to the close relationship between the rehabilitation plan and the impairment arising from a particular injury.

29. The use of indefinite articles reflects the possibility that an employee may suffer more than one injury, incapacity for work, or impairment and may allow for a rehabilitation program to be determined on that basis. On the present facts, we do not need to decide this point. Nonetheless, the discretion under s 37(1) does not arise on the basis of the general condition of the injured employee, although that may be a relevant matter to consider under s 37(3) when considering the kind of program that may be suitable.

30. Section 38 provides that a rehabilitation authority must give the employee a notice setting out the terms of a determination under s 36(1) or s 37(1), the reasons for it and the right of review. This notice would identify the specific injury resulting in incapacity for work or impairment that enlivened the discretion under these sections. Under s 4(8) a reference to an injury suffered by an employee is a reference to an injury in respect of which compensation is payable under the Act, that is, an injury within the meaning of s 5A. Compensation for an injury resulting in an incapacity for work is payable to an employee who is undertaking a rehabilitation program under either s 37(5)(a) or (b). The injury that results in payment of compensation under s 37(5) is the same injury that is referred to in s 37(1). These provisions reinforce the central importance on an injury in the operation of s 36(1) and s 37(1).

1. Once the discretion under s 37(1) is enlivened and the rehabilitation authority determines that an injured employee should undertake a rehabilitation program, the employee is obligated to do so. If the employee refuses or fails, without a reasonable excuse, to undertake the program, “the employee’s rights to compensation under [the] Act, and to institute or continue any proceedings under [the] Act” are suspended by operation of s 37(7). This requires a decision concerning the reasonableness of any excuse proffered by the employee. A decision of that kind is susceptible to reconsideration under s 62 and review under s 64[13].

   [13] Pascoe v Australian Postal Corporation [2004] FCAFC 4 at [13] citing Australian Postal Corporation v Forgie [2003] FCAFC 223.

2. When s 37(7) refers to a failure to undertake “a rehabilitation program”, it is a reference to a rehabilitation program in respect of an injury.  Likewise, when it refers to suspension “until the employee begins to undertake the program” (emphasis added), it is referring to the program in relation to a specific injury, and not to injuries generally.

3. The subsection is concerned with a rehabilitation program in relation to an impairment arising from a particular injury.  This context makes it appropriate to interpret references to “rights to compensation” and to “institute or continue proceedings” as being directed to the particular injury which is the subject of the rehabilitation program which has not been undertaken.  This is a more natural reading rather than a reading which suspends all rights in relation to any injury or impairment whether or not the subject of the rehabilitation program in respect of which the failure occurs.

4. Compensation under the Act is unavoidably and unseverably tied to an injury. In the immediate context of a rehabilitation program provided to an employee under s 37, the injury is that specified in the determination under s 37(1) and notified under s 38(1), in respect of which compensation is payable under s 37(5). That being so, on the plain language of the section, it follows that the suspended rights to which s 37(7) refers are all of the employee’s rights to compensation and to continue or institute any proceedings under the Act in respect of the injury that is the subject of a determination under s 37(1).

5. Australia Post’s submission that there is no cause to import words into s 37(7) to properly understand the meaning of its terms in plain language is correct. There is no compelling reason to read down the section or, conversely, to read it large. The words speak plainly enough from the page when they are read in context. One cannot step over or around s 37(1) when reading s 37(7) – “…the meaning of any statutory provision…, and thus its range of operation, must be determined ‘by reference to the language of the instrument viewed as a whole’”[14]. The words of s 37(7) can be “intelligibly applied to the subject matter”[15] with which s 37 deals, consistent with the matrix of interlaced provisions in Parts II, III and V of the Act, and promoting the specific purpose of providing a strong incentive for an employee who has suffered an injury resulting in an incapacity for work, or an impairment, to undertake rehabilitation and to return to work as soon as possible after the injury.

   [14] Plaintiff M47-2012 v Director General of Security [2012] HCA 46, per Hayne J at [162], citing Mason and Wilson JJ in Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 320.

   [15] Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297, per Gibbs CJ at 305.

6. This interpretation strikes a balance between the failure to undertake the program and the extent and effect of the suspension, whereas the broader interpretation for which Australia Post contends has a draconian effect in that it suspends all rights to compensation or to pursue all proceedings in respect of all injuries and impairments, regardless of the time or circumstances surrounding their occurrence. A strong incentive based on suspending an injured employee’s rights to compensation in respect of an injury is one thing, the consequence of giving s 37(7) a general or ambulatory effect, dissociated from any specific injury, is entirely another.

7. Whilst lack of proportionality is not determinative in itself in deciding whether an interpretation is so unreasonable that it should not be adopted[16], it is nevertheless a matter which can properly be taken into account, where appropriate, in deciding which of one or more possible interpretations should be adopted[17].

   [16] Ringrow Pty Ltd v BP Australia Pty Ltd [2005] HCA 71, per Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ at [27].

   [17] Bruce v Cole (1998) 45 NSWLR 163 at 185 and Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 367.

8. The broader suspension, contended for by Australia Post, could impose a greater incentive to an applicant to comply within the rehabilitation program, but this does not justify an outcome which could produce the anomalous results referred to above. To give s 37(7) the broader effect is to go beyond the “mischief” resulting from failure to undertake a particular program. If the intention of the Parliament was to impose a general suspension in the event of such failure, one would expect to find proper authority in the form of an express provision to support it, without ambiguity or resort to inference[18]; but on any fair reading of s 37(7), it does not reach so far.

   [18] Bropho v Western Australia [1990] HCA 24, per Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ at [13].

9. Moreover, if it had been intended to have a broader effect, it would have been a simple matter for the draftsperson to have referred to “all the employee’s rights” rather than simply refer to “the employee’s rights” in a context where it is clear that the rehabilitation program giving rise to the suspension and its continuance relates to a specific injury. 

10. By way of further example, where a broader operation is given to the suspension so that it operates in respect of all proceedings in respect of any injury, there could be unduly harsh consequences as a result of a failure to undertake a specific plan. On the interpretation of Australia Post, a failure to undertake a rehabilitation plan in relation to a person’s current injury, would prevent the commencement or continuation of all claims or all proceedings in relation to any number of subsequent or previous injuries and the suspension of compensation under the SRC Act in respect of those injuries until such time as the specific program is undertaken. Such a consequence lends strong support to a narrower reading of the subsection.

11. Even though the particular rights suspended by operation of s 37(7) are statutory in nature, the principle that the abrogation or curtailment of established rights should not be imputed or inferred from imprecise language, but rather that “intention must be clearly manifested by unmistakable and unambiguous language”[19] is apposite here. General words such as ‘rights’ and ‘any’ are not sufficient foundation on which to impute a general curtailment of compensation rights during the period of a suspension when the statutory context illuminates a nexus with an injury and, thereby, the specific rights that are suspended.

    [19] Coco v R [1994] HCA 15, per Mason CJ, Brennan, Gaudron and McHugh JJ at [10].

12. Furthermore, the construction contended for by Australia Post may produce inconsistent results, where the effects of suspension under s 37(7) in one case may far exceed the effects of this kind of suspension in another. It is not difficult to conceive of circumstances in which the effect of a general suspension on an employee with multiple compensable injuries and impairments may well be greater than the effect on an employee with fewer injuries and impairments. It is difficult to accept that inconsistency of this kind was intended.

13. For the above reasons we consider that the language of the subsection is consistent on a plain and direct reading of the language used and conclude that the suspensions are directed only at the employee’s rights in relation to the specific failure in question, which is a failure to undertake the program determined under s 37(1) with respect to the specific injury.

14. Accordingly we consider that on its correct interpretation, s 37(7) of the SRC Act only operates to suspend compensation in respect of the particular injury which is the subject of the rehabilitation plan under s 37(1).

    JURISDICTION

15. Absent suspension under s 37(7), the Tribunal has jurisdiction in respect of each of Ms Sinnaiah’s applications. But s 37(7) raises “a ‘jurisdictional fact’ question”[20] in respect of each of these applications that must be identified with particularity, having regard to the “text, context and purpose” of the provision[21].

    [20] Chowdhary v Bayne [1999] FCA 41 at [13], [12] refers.

    [21] Plaintiff M70/2011 v Minister for Immigration and Citizenship & Anor Defendants [2011] HCA 32, per Gummow, Hayne, Crennan and Bell JJ at [109].

16. Presently, the suspension and the reasonableness of Ms Sinnaiah’s excuse for failing to undertake the rehabilitation program has been decided[22] and affirmed on reconsideration[23]. The Tribunal has jurisdiction to consider the related application for review, and the suspension, itself, does not preclude it from proceeding to do so[24]. The Full Federal Court in Pascoe v Australian Postal Corporation[25]explained the separate nature of determinations (and challenges to them) under s 37(1) and s 37(7). In that case, the characterisation of s 37(7) as a “threshold” issue, whereby the Tribunal would not review two other decisions while the suspension was in force, was recorded without disapproval[26]. Those two other decisions related to compensation for permanent impairment under s 24 and compensation for incapacity under s 19. Each of Mr Pascoe’s proceedings arose from the same lower back injury. At first instance, Whitlam J said in Australian Postal Corporation v Pascoe[27] at [7] –

    The threshold question thus posed for the Tribunal by 37(7) was whether Mr Pascoe had a reasonable excuse for failing to undertake the program provided for him on 3 June 1999… Otherwise Mr Pascoe had no right to continue application number N1997/1457[concerning permanent impairment] or to institute the other proceedings before the Tribunal.

    [22] T108.

    [23] T115.

    [24] Australian Postal Corporation v Forgie [2003] FCAFC 223 at [86] and [87].

    [25] [2004] FCAFC 4 at [14].

    [26] Ibid at [9].

    [27] [2003] FCA 390.

17. This approach appears to have been adopted by the Tribunal in some previous cases. For example, in Re Mihaljcic and Linfox Australia Pty Ltd[28] it was decided that Mr Mihaljcic could not proceed with two applications concerning weekly compensation for incapacity resulting from an injury while an unchallenged suspension was in force under s 37(7). The suspension arose from a rehabilitation program in respect of the same injury.

    [28] [2010] AATA 599; see also Re Ching and Australian Postal Corporation [2007] AATA 1089 for example.

18. Presently, there is no application before the Tribunal addressing issues of compensation resulting from Ms Sinnaiah’s accepted right shoulder injury. Her application for review of the s 37(1) determination of a rehabilitation plan in respect of that injury and the decision under s 37(7) to suspend her right to compensation as a result of her failure, allegedly without a reasonable excuse, to undertake the rehabilitation program are presently on foot. The suspension is no bar to these proceedings.

19. Her other applications relate to a denial of compensation for incapacity and medical treatment expenses in relation to an accepted lower back injury as well as to denials of liability in respect of a psychological injury claim and claimed injuries to her right hand, neck, lower back, upper back, left hand and elbow.

20. The Tribunal’s jurisdiction in respect of these applications continues and it is not affected by the suspension under s 37(7).

    PROCEDURE

21. Proceedings in each of Ms Sinnaiah’s application remain on foot. It is necessary to set a timetable to progress each application appropriately and efficiently to hearing once avenues for alternative dispute resolution have been exhausted. The applications will be referred to the District Registrar for this purpose.

    ORDER

22. The Tribunal has jurisdiction to proceed with Ms Sinnaiah’s applications 2011/2909, 2011/4462, 2012/2726, 2012/3994 and 2012/4191. Each application is referred to the District Registrar to progress, as appropriate, to hearing.

I certify that the preceding 52 (fifty -two) paragraphs are a true copy of the reasons for the decision herein of the Hon Brian Tamberlin QC, Deputy President and Mr S. Webb, Member

.........................[sgd]........................................

Associate

Dated 18 December 2012 

Date of hearing	14 November 2012
Counsel for the Applicant	Mr David Richards
Solicitors for the Applicant	Slater and Gordon Lawyers
Counsel for the Respondent	Mr Matthew Gollan
Solicitors for the Respondent	Australian Postal Corporation Litigation Section