Lagrange and Comcare (Compensation) - [2021] AATA 4369

Lagrange and Comcare (Compensation) [2021] AATA 4369 (25 November 2021)
Division:GENERAL DIVISION
File Numbers: 2021/1783
2021/2281

Re:Diana Lagrange
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Deputy President Boyle
Date:25 November 2021
Place:Perth

Pursuant to s 42B(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth), the applications are dismissed.
...[SGD].....................................................................
Deputy President Boyle
CATCHWORDS
PRACTICE AND PROCEDURE – application for dismissal (AAT Act s 42B(1)) – whether application is vexatious – costs: applicability of SRC Act sub-ss 67(1), (2), (8) – Tribunal’s powers statutory – circumstances of the case do not meet the requirements of SRC Act sub-ss 67(2) or (8) – under current program Applicant receives what she sought – no practical purpose would be served by a successful review of the decision the subject of the applications – proceedings have become frivolous – applications dismissed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) ss 2A(b), 33(1)(b), 42B, 42B(1), 42B(1)(a)
Rules of the Supreme Court 1971 (WA) ord 59
Safety, Rehabilitation and Compensation Act 1988 (Cth) s 37, 62(1) 62(2), 62(5) 67, 67(1), 67(2), 67(8)
CASES
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 406
Fearnley v Australian Fisheries Management Authority [2006] FCAFC 3; (2006) 94 ALD 519
Flahive and Comcare [2021] AATA 2444
Greczanik and Australian Postal Corporation [1994] AATA 160
Lees v Comcare [1999] FCA 753; (1999) ALD 84
Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326
Perry v Comcare [2006] FCA 33
Riley v Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees (1994) 48 FCR 449
Shi v Migration Agents Registration Authority [2007] FCAFC 59; (2007) FCR 525
Williams and Australian Electoral Commission [1995] AATA 160; (1995) 38 ALD 366
REASONS FOR DECISION
Deputy President Boyle
25 November 2021
THE APPLICATION

The Respondent seeks dismissal of the two applications under s 42B(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) on the basis that the applications are frivolous and/or vexatious.
BACKGROUND
The following facts are largely taken from the Respondent’s dismissal submissions dated 17 August 2021. They appear not to be contested by the Applicant.
The Applicant was employed as an “emergency and remote registered nurse” when she fell and suffered an injury.
The Respondent has accepted liability under the Safety Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) for “contusion of hip and thigh (left)” with a date of injury of 16 May 2012 (the injury).
The Applicant was paid incapacity payments for a limited period in 2012, for 13 weeks in 2017 and significant periods of incapacity in 2018 following surgery.
Following her injury in 2012, the Applicant continued to work in the casual pool at the Sir Charles Gairdner Hospital (emergency department) as well as engaging in various remote work at Wheatstone and Queensland, until July 2017 when she had her first surgery.
Following that surgery, a work trial rehabilitation program was organised pursuant to s 37 of the SRC…

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 Lagrange and Comcare (Compensation)

Details

AGLC: Lagrange and Comcare (Compensation) [2021] AATA 4369
Case: [2021] AATA 4369
Decision Date: 25 November 2021

CaseChat Overview and Summary

This matter concerned an application for review by the Applicant, Lagrange, against a decision by Comcare. The dispute centred on the Applicant's rehabilitation program, specifically the stated goal of that program. The Applicant sought to have the goal amended to include a return to work in her pre-injury role as an emergency department registered nurse. The Administrative Appeals Tribunal (AAT) was required to determine whether it had jurisdiction to review the matter and, if so, whether the applications should be dismissed.

The legal issues before the Tribunal were whether the applications had become frivolous or vexatious, and whether there was any practical purpose in continuing the review. The Tribunal considered its powers under section 43(1) of the Administrative Appeals Tribunal Act 1993 (Cth), which are limited to reviewing a reviewable decision. The Tribunal noted that the rehabilitation plans under review had expired, and that a new program was being developed which incorporated the Applicant's desired goal.

Deputy President Boyle P reasoned that the Tribunal's jurisdiction was limited to reviewing the specific decisions that were the subject of the reviewable decision, which in this case related to expired rehabilitation plans. The Tribunal accepted submissions that a review of these expired plans would serve no practical purpose, as the Applicant was now receiving what she sought through the new program. Consequently, the Tribunal found that the proceedings had become frivolous, even if not initially instituted vexatiously, as there was no longer any benefit to be gained by retrospectively altering the wording of the expired plans.

The Tribunal ordered that the applications for review be dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

By letter dated 16 February 2021,[10] which the parties have treated as the reviewable decision, the Respondent purported to affirm both the program of 18 December 2020 and the program of 24 December 2020. The Respondent stated that it was not satisfied that there was sufficient evidence to alter the final goal in the rehabilitation plan to include return to work as an emergency department registered nurse. The Respondent stated:The delegate has clearly identified the need to build up your capacity for work as a precursor to specifically honing in on the competencies required for an Emergency Department Registered Nurse. Given the long period of time you have been out of the work force I accept the delegate’s reasoning in this regard and find there is no basis to alter the current wording in the determinations dated 18 December 2020 and 24 December 2020.[11][10] T47.[11] T47/187. By application for review lodged with the Tribunal on 26 March 2021, the Applicant sought review of the reviewable decision. Because the parties proceeded on the basis of there being two determinations and two reviewable decisions, the application was assigned two separate file numbers by the Tribunal: 2021/1783 and 2021/2281. The two applications, in effect, relate to the same issue and have been programmed and dealt with together. The application stated the reason for the review was:1. Failure of Comcare to correctly interpret and apply the provisions of s37 of the Safety, Rehabilitation and Compensation Act 1988;2. Failure of Comcare to correctly set out the appropriate goal of the Applicant's Return to Work Programme; and3. Findings made by Comcare that are not in accordance with the reliable evidence, including the Applicants' evidence as to her and her treating doctors preferred return to work goal, that is, to her pre-injury role. On 8 June 2021, the Applicant was reviewed by Dr David Fitzgerald, occupational physician, who prepared a report.[12] Dr Fitzgerald expressed the view that the Applicant was now able to “carry out pre-injury RN duties when suitable employment is found”. Dr Fitzgerald considered that work hardening was not required and that “from a physical point of view she has recovered to the extent she would be able to return to full time emergency and remote RN duties as soon as a position is available to her”.[13][12] Respondent’s dismissal submissions, Annexure A.[13] Respondent’s dismissal submissions, Annexure A, 7. Following receipt of Dr Fitzgerald’s report, Medibank (which was administering the rehabilitation program) provided a copy of the report to the Applicant on 11 June 2021 and organised a meeting to finalise the then-current program and commence a new program based on the updated information in the report. On 30 June 2021 Medibank sent the Applicant a closure form for the then-current rehabilitation program. It is that program, the program of 24 December 2020, which is the subject of the review in these proceedings. At the same time, Medibank also sent the Applicant a new rehabilitation plan (the new program) for consultation.

Ratio Decidendi

Legal Principle Established

The Respondent’s written submissions filed on 17 August 2021 were to the following effect:(a)The powers of the Tribunal under s 43(1) of the AAT Act are powers for the purpose of reviewing the reviewable decision, not powers that may be exercised at large.[24] (b)The Tribunal’s jurisdiction in relation to this application is limited to reviewing plans which have now expired. In accordance with the decision in Lees, the Tribunal has no jurisdiction to review the current plan which has not been the subject of a reviewable decision.(c)The Tribunal is therefore left in a situation where it is asked to make changes to two plans which are no longer in existence and therefore there is no longer any practical purpose proceeding with this review.(d)The applications should be dismissed because they have become frivolous or vexatious.[25](e)The applications, whilst not instituted vexatiously, have now become vexatious as there is no practical purpose in the Tribunal retrospectively changing the language used in a plan which has now ceased to exist.(f)Any change to the wording of the expired plan, including the requested change to the wording of the goal of the plan, would not be a decision that is more favourable to the Applicant, because the change would have no practical effect. This is because any change to the expired plan would not provide any benefit to the Applicant and no additional rehabilitation would be available, nor would there be any additional compensation payable.[24] Citing Lees at [39].[25] Citing Flahive at [16]–[18].CONSIDERATION At the hearing Mr Lourey succinctly described the Applicant’s position as follows:The program that is now being developed by the parties is directed towards that goal, so my client’s approach to this is that the subject matter of her application has indeed fallen away because the respondent is giving her, or is in the process of giving her what she has sought from the outset, which is a program with the content consistent of returning her to that pre injury role.My friend made submissions in relation to this not being a reconsideration of its own motion. One can easily understand why the [R]espondent would choose to characterise it as such, but the point is, sir, the application was necessary to get the respondent to focus on the issues that my client was agitating, which is, (1), a goal of the return to work program; and (2), activities in a program consistent with the achievement of that goal.Now, with the changes taking effect and the development of content particular to that goal, the subject matter of the application as brought did fall away, but what this boils down to is, it’s about costs. My client met the costs. My client has sought legal assistance to effect the change in what was happening on the ground that she desired, and she’s been successful with that. The characterisation of the matter in the way my friend’s client’s chosen to do through my friend’s submissions, my client disagrees vehemently, sir. She should not be deprived of her costs of this application on the basis of anything that’s now claimed by the [R]espondent.[26][26] transcript at 10.