JOHN ANTHONY FLAHIVE Applicant And COMCARE Respondent
[2007] AATA 7
•8 January 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 7
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2005/281
GENERAL ADMINISTRATIVE DIVISION ) Re JOHN ANTHONY FLAHIVE Applicant
And
COMCARE
Respondent
DECISION
Tribunal Deputy President S D Hotop Date8 January 2007
PlacePerth
Decision The Tribunal affirms the decision under review.
....[Sgd S D Hotop].......
Deputy President
CATCHWORDS
COMPENSATION – Commonwealth employees – rehabilitation – rehabilitation authority arranged for assessment of employee’s capability of undertaking rehabilitation program – rehabilitation authority sent letter to employee stating that assessment arranged to assist in identifying rehabilitation needs and notifying him of assessment appointment details – no other documentation evidencing determination of rehabilitation authority – rehabilitation authority’s letter constituted both determination and notice of determination to employee – notice did not comply with statutory requirement – non-compliance of notice with statutory requirement did not affect validity of determination – decision under review affirmed
Safety, Rehabilitation and Compensation Act 1988 (Cth), s 36, s 38, s 60, s 61, s 62, s 63, s 64 and s 109
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Re Grolier Enterprises and Australian Postal Commission (1977) 1 ALD 10
Re Harrison and Australian Telecommunications Corporation (1991) 14 AAR 13
Re Jamieson and Department of Veterans’ Affairs as Delegate of Comcare [2003] AATA 1108
REASONS FOR DECISION
8 January 2007 Deputy President S D Hotop Introduction
1. John Anthony Flahive (“the applicant”) suffered certain injuries in 2002 and 2003 in the course of his employment with the Australian Taxation Office ("ATO”) and compensation in respect of those injuries was payable to him in accordance with the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the SRC Act”).
2. On 21 July 2005 an officer of the ATO wrote to the applicant notifying him that she was the ATO’s “delegated Rehabilitation Authority” in respect of his compensation claim and that, pursuant to s 36 of the SRC Act, she had arranged for him to be assessed by a medical practitioner at a specified place on a specified date in order to “assist [her] in identifying [his] rehabilitation needs”.
3. On 26 July 2005 the applicant sent an e-mail to the respondent’s solicitors requesting “a reconsideration of this correspondence” on the ground that it did not comply with the requirements of s 38(1) of the SRC Act.
4. On 2 August 2005 a Review Officer of the respondent made a decision affirming the determination of 21 July 2005, and the applicant was so notified by the Review Officer by letter of the same date.
5. On 5 August 2005 the applicant lodged with the Tribunal an application for review of the Review Officer’s decision of 2 August 2005.
The Issue
6. The issue which the applicant has raised for the Tribunal’s consideration and determination is whether the contents of the letter of 21 July 2005 (referred to in paragraph 2 above) are valid.
The Evidence
7. The evidence before the Tribunal comprised the “T Documents” (T1-T945) lodged by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”), and the oral evidence of the applicant.
The relevant T Documents
8. The contents of the abovementioned letter of 21 July 2005 (T867) are as follows:
“I am writing to you regarding your current claims for compensation. As you are aware, the legislative basis for the management of your compensation claim is the Safety, Rehabilitation and Compensation Act 1988 (henceforth referred to as the Act).
You have three claims which currently remain open with Comcare as follows:
820074/01 date of injury 19.9.02 a knee condition
820074/02 date of injury 11.12.02 an ear condition
820074/03 date of injury 22.1.03 a psychological condition.
Section 36 of the Act provides the assessment framework for identifying your rehabilitation needs. Subsection 36(1) of the Act details that where an employee suffers an injury that results in an incapacity for work or an impairment, the rehabilitation authority may at any time, and shall on the written request of the employee, arrange for the assessment of the employee’s capability of undertaking a rehabilitation program. I am the Australian Taxation Office’s delegated Rehabilitation Authority for your claim.
To assist me in identifying your rehabilitation needs, I have arranged for you to be assessed by Dr Connaughton who is a qualified occupational physician and has an extensive background in assisting injured employees in achieving their vocational rehabilitation goal. The assessment is a consultative process, which principally relies upon the maximum input from each stakeholder.
Details of the appointment are as follows:
Doctor: Dr Peter Connaughton, Occupational Physician
Place: Unit 6
125 Melville Parade
COMO WA 6152
Date and time: Monday 15th August 2005 at 9 am.
At the completion of the assessment, Dr Connaughton will provide me with a report, which will detail your capability of undertaking rehabilitation and may be relied upon in formulating a suitable rehabilitation program. Once I have received the report, I will arrange for you to be provided with a copy of it.
Subsection 36(4) of the Act obliges me to inform you that failure by you, without reasonable excuse, to undergo the assessment may lead to your rights to compensation under the Act being suspended until the assessment is undertaken. A further explanation of your rights and responsibilities in regard to this assessment is found in the attached document ‘Information for Employees’.
...”
9. The applicant’s request for a “reconsideration” was contained in an e-mail dated 26 July 2005 addressed to “Comcare Solicitor”. (T874)
10. A letter dated 2 August 2005 from the respondent to the applicant (T892) stated:
“I refer to your claims... and your letter dated 26 July 2005.
Your letter has been accepted as a formal notice pursuant to sub-section 62(2) of the Act, requesting that this office reconsider a determination it has made.
...”
11. The decision and reasons of the Review Officer of the respondent, dated 2 August 2005 (T895), were as follows:
“Safety, Rehabilitation and Compensation Act 1988 (‘the Act’)
Claim No: 820074/01 Reconsideration No: 315595
Request for Reconsideration of the Determination dated 21 July 2005
Re: John Flahive (‘the employee’)
1. Background
The employee has 3 accepted claims in respect of injuries sustained whilst working for the Australian Taxation Office (ATO). They are for:
·tear of medial cartilage or meniscus of knee (Left)
·noise effects on inner ear
·major depressive disorder, single episode.
In a letter dated 21 July 2005 the ATO, in its capacity as a rehabilitation authority, advised the employee that he is to attend an exam with Dr Peter Connaughton, occupational physician, on 15 August 2005. The purpose of the exam was to assess the employee’s capability of undertaking a rehabilitation program.
On 26 July 2005 the employee requested a reconsideration of the determination dated 21 July 2005.
2. Decision
I have completed my reconsideration and I am satisfied that the letter of 21 July 2005 was a valid determination issued in accordance with the provisions of section 36 of the Act. Accordingly, the determination is affirmed.
3. Reasons
In an e-mail dated 26 July 2005, the employee contended that the letter from the ATO arranging a medical appointment with Dr Connaughton was not a valid notice under the Act and therefore believed that the ATO were refusing to provide an adequate referral for a rehabilitation assessment as required by the Act.
The issue to consider is whether the ATO’s letter of 21 July 2005 constitutes a determination under section 36.
Section 36 deals with assessing an employee’s capability to undertake a rehabilitation program. It states:
[subss (1), (2) and (3) of s 36 are then set out]
Thus, subsection 36(1) of the Act enables a rehabilitation authority to arrange for an assessment of the employee’s capability to undertake a rehabilitation program.
A determination may be made by the rehabilitation authority under subsection 36(3) to require the employee to undergo an examination by the person making the assessment. The ATO’s letter dated 21 July 2005 states that the employer had arranged for the employee to be assessed by Dr Connaughton. It did not make any reference to the employee being ‘required’ or directed to undergo an assessment.
However, the letter does advise the employee of the consequences of a failure to undergo an examination under subsection 36(4). When read in this context, it is implicit that a determination under subsection 36(3) was made.
The other issue to consider is whether the letter dated 21 July 2005 constituted a valid notice as stipulated in subsection 38(1). This subsection of the Act requires the rehabilitation authority to issue a determination in writing to the employee. The determination will set out:
(a) the terms of the determination;
(b) the reasons for the determination; and
(c) the employee’s right to request a review of the determination.
I am satisfied that the letter of 21 July 2005 meets the first two requirements in that it notifies the employee that an assessment has been arranged with Dr Connaughton for the purposes of identifying his rehabilitation needs. Although the employee’s rights of review are not stated in the letter, the relevant information was outlined in a document attached to the letter titled ‘Referral for Rehabilitation Assessment’. The rights of review could be found under the subheading ‘Information for Employees’. This would meet the third requirement of subsection 38(1).
In considering the evidence, I am satisfied that the letter issued to the employee by the ATO on 21 July 2005 was a valid determination having regard to subsection 36(3) of the Act.
4. Notice of Rights
If you are dissatisfied with my decision, you may lodge an application with the Administrative Appeals Tribunal (‘the AAT’) to have it reviewed. Relevant forms are available from the AAT but you may, instead, write to them including the following information in your letter:
·The date and details of the decision;
·The name of the person who made the decision;
·The reason(s) for your request for review; and
·The Reconsideration Number (315595).
The AAT’s mailing address is: Deputy Registrar, Administrative Appeals Tribunal, GPO Box 9955, PERTH 6001.
There is a time limit of 60 days from the day you receive the decision in which to lodge the application but, in some cases, an extension of time may be granted by the AAT.”
The applicant’s evidence
12. The applicant confirmed that he received the abovementioned letter of 21 July 2005 (T867) but he said that the “attached document ‘Information for Employees’” referred to in that letter was not in fact attached to, or enclosed with, that letter and was never received by him in connection with that letter.
13. The applicant confirmed that on 26 July 2005 he sent an e-mail to the respondent’s solicitors requesting a “reconsideration” of the decision of 21 July 2005 on the basis that the notice of that decision did not comply with the requirements of s 38 of the SRC Act.
14. The applicant acknowledged that he had previously received “notices of rights” from the respondent and that, “generally speaking”, he was aware of his right to request a review of a “negative decision” of the ATO or of the respondent.
15. The applicant said that he nevertheless attended the scheduled appointment with Dr Connaughton on 15 August 2005. [The Tribunal notes that Dr Connaughton provided to the ATO a report dated 15 August 2005 regarding his examination of the applicant on 15 August 2005 (T923)].
The Relevant Legislation
16. The relevant provisions of the SRC Act are as follows:
“Part III – Rehabilitation
...
36 Assessment of capability of undertaking rehabilitation program
(1) Where an employee suffers an injury resulting in an incapacity for work or an impairment, the rehabilitation authority may at any time, and shall on the written request of the employee, arrange for the assessment of the employee's capability of undertaking a rehabilitation program.
(2) An assessment shall be made by:
(a) a legally qualified medical practitioner nominated by the rehabilitation authority;
(b) a suitably qualified person (other than a medical practitioner) nominated by the rehabilitation authority; or
(c) a panel comprising such legally qualified medical practitioners or other suitably qualified persons (or both) as are nominated by the rehabilitation authority.
(3) The rehabilitation authority may require the employee to undergo an examination by the person or panel of persons making the assessment.
(4) Where an employee refuses or fails, without reasonable excuse, to undergo an examination in accordance with a requirement, or in any way obstructs such an examination, 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 examination takes place.
...
38 Review of certain determinations by Comcare
(1) As soon as practicable after a rehabilitation authority (other than a relevant authority) makes a determination under section 36 or 37, the authority shall cause to be served on the employee to whom the determination relates a notice in writing setting out:
(a) the terms of the determination;
(b) the reasons for the determination; and
(c) a statement to the effect that the employee may, if dissatisfied with the determination, request Comcare for a review of the determination under this section.
(2) An employee in respect of whom a determination under section 36 or 37 is made by a rehabilitation authority (other than a relevant authority) may, by notice in writing given to Comcare, request Comcare to review the determination.
(3) A request shall:
(a) set out the reasons for the request; and
(b) be given to Comcare within 30 days after the day on which the determination first came to the notice of the employee, or within such further period (if any) as Comcare, either before or after the expiration of that period, allows.
(4) On receipt of a request, Comcare shall review the determination and may make a decision affirming or revoking the determination or varying the determination in such manner as Comcare thinks fit.
...
Part VI – Reconsideration and review of determinations
60 Interpretation
(1) In this Part:
claimant means a person in respect of whom a determination is made.
decision has the same meaning as in the Administrative Appeals Tribunal Act 1975 .
determination means a determination, decision or requirement made under section 8, 14, 15, 16, 17, 18, 19, 20, 21, 21A, 22, 24, 25, 27, 29, 30, 31, 34, 36, 37 or 39, under paragraph 114B(5)(a) or under Division 3 of Part X.
determining authority , in relation to a determination, means the person who made the determination.
reviewable decision means a decision made under subsection 38(4) or section 62.
...
61 Determinations to be notified in writing
(1) As soon as practicable after a determining authority makes a determination, it shall cause to be served on the claimant a notice in writing setting out:
(a) the terms of the determination;
(b) the reasons for the determination; and
(c) a statement to the effect that the claimant may, if dissatisfied with the determination, request a reconsideration of the determination under subsection 62(2).
...
62 Reconsideration of determinations
...
(2) A request to a determining authority to reconsider a determination made by it may be made by:
(a) the claimant; or
(b) if the determination affects the Commonwealth--the Commonwealth; or
(c) if the determination affects a Commonwealth authority--that Commonwealth authority.
…
(3) A request for reconsideration of a determination shall:
(a) set out the reasons for the request; and
(b) be given to the determining authority within 30 days after the day on which the determination first came to the notice of the person making the request, or within such further period (if any) as the determining authority, either before or after the expiration of that period, allows.
(4) On receipt of a request, the determining authority shall reconsider the determination or cause the determination to be reconsidered by a person to whom its power under this section is delegated, being a person other than a person who made, or was involved in the making of, the determination.
(5) Where a person reconsiders a determination, the person may make a decision affirming or revoking the determination or varying the determination in such manner as the person thinks fit.
63 Reviewable decision to be notified in writing
As soon as practicable after a person makes a reviewable decision, the person shall cause to be served on the claimant a notice in writing setting out:
(a) the terms of the decision;
(b) the reasons for the decision; and
(c) a statement to the effect that, subject to the Administrative Appeals Tribunal Act 1975, application may be made to the Administrative Appeals Tribunal for review of the decision to which the notice relates.
64 Applications to the Administrative Appeals Tribunal
(1) Application to the Administrative Appeals Tribunal for review of a reviewable decision may be made by:
(a) the claimant; or
(b) if the decision affects the Commonwealth--the Commonwealth; or
(c) if the decision affects a Commonwealth authority--the Commonwealth authority; or
(d) if the decision affects a corporation that holds a licence under Part VIII--the licensed corporation.
...
Part IX – Miscellaneous
...
109 Determinations to be in writing
(1) A determination under this Act shall be in writing.
(2) A determination shall be taken to be in writing if it is entered into, or recorded with the use of, a computer.”
Analysis
What is the proper characterisation of the letter of 21 July 2005?
17. Section 36 of the SRC Act:
·authorises a “rehabilitation authority” to arrange for the assessment of an employee’s capability of undertaking a rehabilitation program (subs(1));
·provides that such an assessment shall be made by (among other persons) a legally qualified medical practitioner nominated by the rehabilitation authority (subs (2)); and
·authorises the rehabilitation authority to require the employee to undergo an examination by the person making the assessment (subs (3)).
Section 38(1) of the SRC Act requires the rehabilitation authority, “as soon as practicable after” making a “determination” under s 36, to cause to be served on the relevant employee a written notice setting out the matters specified in paras (a), (b) and (c).
18. Sections 36 and 38 clearly contemplate the making of a “determination” (which, by s 109(1), must itself be in writing) by a “rehabilitation authority” under s 36, followed by the giving of a proper notice in writing of that “determination” to the employee. In the present case the only document before the Tribunal which appears to evidence the making of a “determination” under s 36, and the giving of notice of that “determination” to the applicant, is the letter of 21 July 2005 (T867).
19. In Re Harrison and Australian Telecommunications Corporation (1991) 14 AAR 13 the Tribunal (at 14) described the “practice of making determinations in letters addressed to claimants”, for the purposes of the immediate statutory predecessor of the SRC Act, as “most unsatisfactory”. The Tribunal added (at 14):
“What is clearly required by s 61 of the Act [identical to s 61 of the SRC Act] is that there be a formal determination made by the determining authority and then a written notice of it served on the claimant.”
In the Tribunal’s opinion that comment is equally applicable to s 38(1) of the SRC Act.
20. In the present case, the Tribunal will proceed on the basis that the author of the letter of 21 July 2005 is a “rehabilitation authority” (as defined in s 4(1) of the SRC Act), for the purposes of ss 36 and 38 of the SRC Act. The Tribunal notes, however, that no relevant instrument of delegation was in evidence before it.
21. The Tribunal notes that, although there is a definition of the word “determination”, for the purposes of Part VI of the SRC Act, in s 60(1) of the SRC Act, there is no definition of the word “determination” in that Act for the purposes of Part III of that Act. The Tribunal is, nevertheless, prepared to accept that the letter of 21 July 2005 constitutes a determination, in writing (as required by s 109(1)), under s 36 of the SRC Act. That letter also purports to give to the applicant notice of that determination. It seems, therefore, that the “most unsatisfactory” practice referred to in Re Harrison (above) was followed by the rehabilitation authority in this case.
Did the letter of 21 July 2005 constitute a valid determination under s 36 of the SRC Act?
22. Although the letter of 21 July 2005 notified the applicant of the determination that had been made under s 36 in relation to him, it did not, in the Tribunal’s opinion, strictly comply with s 38(1)(c) of the SRC Act because it did not itself set out “a statement to the effect that the [applicant] may, if dissatisfied with the determination, request Comcare for a review of the determination under [s 38]”, as required by para (c) of s 38(1). The Tribunal notes that the letter of 21 July 2005 refers to an “attached document” entitled “Information for Employees” but the Tribunal accepts the applicant’s evidence – which was not contradicted by the respondent at the hearing – that no such document was in fact attached to, or enclosed with, that letter. Accordingly, the Tribunal is satisfied that the notice contained in the letter of 21 July 2005 did not comply with s 38(1) of the SRC Act.
23. Although the notice of the determination under s 36 of the SRC Act, which was contained in the letter of 21 July 2005, did not comply with s 38(1) of that Act, that non-compliance does not affect the validity of the determination itself: Re Jamieson and Department of Veterans’ Affairs as Delegate of Comcare [2003] AATA 1108. Accordingly, the Tribunal is satisfied, and finds, that the letter of 21 July 2005 constitutes a valid determination under s 36 of the SRC Act.
The “reviewable decision” in this case
24. The Tribunal now turns to the decision of the Review Officer of the respondent, dated 2 August 2005, which is the subject of the applicant’s application to the Tribunal for review.
25. It seems, having regard to the respondent’s letter of 2 August 2005 to the applicant set out in paragraph 10 above, that the respondent treated the applicant’s e-mail of 26 July 2005 as a request, pursuant to s 62(2) of the SRC Act, that the respondent “reconsider a determination it has made”. This was, in the Tribunal’s opinion, an error by the respondent as regards the basis on which it was required to act on the applicant’s request. The applicant’s request was obviously a request that the respondent reconsider, not a determination made by it, but instead a determination made by the ATO rehabilitation authority. It follows that the respondent should have treated the applicant’s request – notwithstanding that he erroneously described it as a request for a “reconsideration” – as a request, pursuant to s 38(2) of the SRC Act, that the respondent “review the determination” made under s 36 by the ATO rehabilitation authority.
26. Turning to the Review Officer’s statement of his decision and reasons, dated 2 August 2005, set out in paragraph 11 above, the Tribunal notes that the statement is headed:
“Safety, Rehabilitation and Compensation Act 1988 (‘the Act’)
Claim No: 820074/01 Reconsideration No: 315595
Request for Reconsideration of the Determination dated 21 July 2005
Re: John Flahive (‘the employee’)”,
and, under the subheading “1. Background”, clearly indicates that the determination which is the subject of the “reconsideration” is the determination, dated 21 July 2005, of “the ATO, in its capacity as a rehabilitation authority”. Accordingly, the Tribunal is prepared to regard the Review Officer’s decision – although it is wrongly described in the statement as a “Reconsideration” – as in substance constituting a decision on a review under s 38(4) of the SRC Act. A decision made under s 38(4) is a “reviewable decision” (as defined in s 60(1) of the SRC Act) in respect of which an application to the Tribunal for review may be made pursuant to s 64(1). The Tribunal, therefore, has jurisdiction to determine the applicant’s application for review of the Review Officer’s decision of 2 August 2005 on that basis.
27. The Review Officer’s decision of 2 August 2005 was a decision to affirm the determination of the ATO rehabilitation authority, dated 21 July 2005, on the basis that it was “a valid determination issued in accordance with the provisions of section 36 of the Act”. The Tribunal has likewise found that the ATO rehabilitation authority’s determination of 21 July 2005 was a valid determination under s 36 of the SRC Act (see paragraph 23 above).
28. The Tribunal notes that the Review Officer, in his statement of reasons for his decision of 2 August 2005, stated that he was satisfied that the ATO rehabilitation authority’s letter of 21 July 2005 complied with the notice requirements of s 38(1) of the SRC Act. The Tribunal, as indicated in paragraph 22 above, is of the contrary view. In performing its review function pursuant to s 25 of the AAT Act and s 64 of the SRC Act in this case, however, the Tribunal is reviewing the “reviewable decision” itself of the Review Officer rather than the Review Officer’s reasons for that decision, and the function of the Tribunal is to make the correct or preferable decision on the basis of the material before it: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 68, 77. Affirmation by the Tribunal of a decision does not necessarily imply full acceptance by the Tribunal of the decision-maker’s reasons for that decision. Accordingly, the Tribunal may affirm a decision which is under review for reasons which differ from those of the maker of that decision: Re Grolier Enterprises and Australian Postal Commission (1977) 1 ALD 10.
conclusion
29. In the present case the Tribunal agrees with the “reviewable decision” of the Review Officer, dated 2 August 2005, namely, that the determination of the ATO rehabilitation authority, dated 21 July 2005, was a valid determination under s 36 of the SRC Act, although the Tribunal does not agree with the view, expressed by the Review Officer in his statement of reasons for that decision, that the ATO rehabilitation authority’s letter of 21 July 2005 complied with s 38(1) of the SRC Act.
Decision
30. For the above reasons the Tribunal affirms the decision under review.
I certify that the 30 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop
Signed: .........[Sgd S da Motta]............................
AssociateDate of Hearing 17 October 2006
Date of Decision 8 January 2007
Counsel for the Applicant In person
Counsel for the Respondent Mr B Ablong
Solicitor for the Respondent Dibbs Abbott Stillman
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