Makedonas and Australian Air Express Pty Ltd
[2003] AATA 225
•10 March 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 225
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2002/155
GENERAL ADMINISTRATIVE DIVISION ) Re CON MAKEDONAS Applicant
And
AUSTRALIAN AIR EXPRESS PTY LTD
Respondent
DECISION
Tribunal Ms G Ettinger, Senior Member Date10 March 2003
PlaceSydney
Decision The Tribunal has no jurisdiction in respect of this application.
[sgd] Ms G Ettinger
Senior Member
CATCHWORDS
PRACTICE AND PROCEDURE – Tribunal’s jurisdiction to review suspension of payments under sub-section 37(7) of Safety Rehabilitation and Compensation Act 1988 - suspension not associated with a reviewable decision ceasing liability for incapacity or refusing compensation for medical or other expenses – no jurisdiction
LEGISLATION
Administrative Appeals Tribunal Act 1975 s 44
Safety Rehabilitation and Compensation Act 1988 ss 37, 38, 60, 62, 64
CASE LAW
Trajkovski v Telstra Corporation Ltd (1988) 81 FCR 459
Chowdhary v Bayne [1999] FCA 41
Re Duval and Australian Postal Corporation [2002] AATA 306
Re Quis v Comcare [2001] AATA 263
Re Peisley and Comcare [2001] AATA 121
Buck v Comcare (1996) 137 ALR 335
Re Martiniello and Comcare Australia (1994) 33 ALD 774
Re Anita Chowdhary and Comcare [1998] AATA 448
REASONS FOR DECISION
10 March 2003 Ms G Ettinger, Senior Member 1. The matter before the Administrative Appeals Tribunal (“the Tribunal”) was the application of Mr Con Makedonas, the Applicant in these proceedings for review of a decision of the Respondent, Australian Air Express Pty Ltd, dated 20 January 2002 (T83), in which it had suspended the Applicant’s rights to compensation pursuant to section 37(7) of the Safety Rehabilitation and Compensation Act 1988 (“the SRC Act”). In making this decision, the Respondent, stated that it was affirming its decision of 22 June 2001 (T76), in which it had stated as follows:
“Pursuant to section 37(7) of the Safety, Rehabilitation and Compensation Act 1988, I hereby determine that the Claimant’s rights to compensation under this Act and to institute or continue any proceedings under this Act in relation to compensation, are suspended on and from 22nd June 2001 until such time as the claimant begins to undertake the rehabilitation program which was the subject of the determination dated 30th April 2001”.
2. Mr Makedonas was given details regarding how to appeal the decision of 22 June 2001 by requesting a reconsideration in writing “under Section 62 of the SRC Act”. When the Respondent gave the decision of 20 January 2002 to Mr Makedonas, it enclosed a further notice regarding rights of review, this time to this Tribunal.
3. Accordingly the Applicant made application to this Tribunal dated 29 January 2002 (T2), and by way of amended notice dated 5 February 2002 (T1).
4. At the Hearing of the jurisdictional issue before me, the Applicant was represented by Mr J Hatzistergos of counsel instructed by Steve Masselos & Co, and the Respondent by Mr B Kelly of counsel instructed by Ebsworth & Ebsworth.
ISSUE BEFORE THE TRIBUNAL
5. The issue to be decided was whether this Tribunal has jurisdiction to review the decision of the Respondent to make a decision pursuant to section 37(7) of the SRC Act to suspend Mr Makedonas’ rights to compensation under the SRC Act and his rights to institute or continue any proceedings under the SRC Act in relation to compensation, on and from 22 June 2001 until such time as he begins to undertake the rehabilitation program subject of the determination of the Respondent dated 30 April 2001.
LEGISLATIVE CONTEXT
6. The relevant legislation in this matter is sections 37, 38, 60, 62 and 64 of the SRC Act which follow as relevant:
“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 and, where the authority so determines, it may make arrangements with an approved program provider for the provision of a rehabilitation program for the employee.
…
(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.
…
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.
…
60 Interpretation
(1) In this part
…
decision has the same meaning as in the Administrative Appeals Tribunal Act 1975
…
62 Reconsideration of determinations
(1) A determining authority may, on its own motion:
(a) reconsider a determination made by it; or
(b) cause such a determination to be reconsidered by a person to whom its power under this section is delegated, being a person other than the person who made, or was involved in the making of, the determination;
whether or not a proceeding has been instituted or completed under this Part in respect of a reviewable decision made in relation to that determination.
(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 is not a licensed authority—the Commonwealth or that authority; or
(d) if the determination affects a licensed authority that holds a Class 1 Licence under Part VIIIA—the licensed authority; or
(e) if the determination affects a licensed authority that holds a Class 2 Licence under Part VIIIA—the Commonwealth; or
(f) if the determination affects a licensed corporation that holds a Class A licence under Part VIIIB—the licensed corporation.
(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.
…
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 determination affects a Commonwealth authority that is not a licensed authority—the Commonwealth or that authority; or
(d) if the determination affects a licensed authority that holds a Class 1 Licence under Part VIIIA—the licensed authority; or
(e) if the determination affects a licensed authority that holds a Class 2 Licence under Part VIIIA:
(i) the Commonwealth; and
(ii) in the circumstances mentioned in subsection (2)—the licensed authority; or
(f) if the determination affects a licensed authority that holds a Class 3 Licence under Part VIIIA and the circumstances mentioned in subsection (2) apply—the licensed authority; or
(g) if the determination affects a licensed corporation that holds a Class A Licence under Part VIIIB—the licensed corporation; or
(h) if the determination affects a licensed corporation that holds a Class B Licence under Part VIIIB and the circumstances mentioned in subsection (2) apply—the licensed corporation.
(2) The circumstances mentioned in subparagraph (1)(e)(ii) and paragraphs (1)(f) and (h) are that the licence is subject to a condition referred to in subparagraph 107G(3)(d)(ii) or paragraph 108H(4)(d), as the case may be.
(3) Despite section 27 of the Administrative Appeals Tribunal Act 1975 , a person may not make an application to the Administrative Appeals Tribunal for a review of a reviewable decision except as provided by subsection (1) of this section.”
7. For the Tribunal to have jurisdiction there must be a reviewable decision as defined in section 60(1) of the SRC Act, that is, a decision made pursuant to section 38(4) or section 62 of the SRC Act.
8. Section 38 of the SRC Act provides for Comcare to review a determination made by a rehabilitation authority under section 36 or section 37. A determination so reviewed can be the subject of an appeal to the Tribunal.
9. Section 62 permits a claimant to seek a reconsideration of a determination made by a determining authority such as Comcare. The determining authority has then to conduct the reconsideration. A determining authority can also conduct a reconsideration on its own motion under s 62(1).
BACKGROUND
10. The Tribunal noted that the issue here arose as a result of an injury claimed by Mr Makedonas (date of birth 27 March 1973), in his undated application for compensation (T11), (date stamped as received by Comcare on 8 August 2000), to have been incurred with regard to his lower back, when lifting boxes in the course of his employment injury on 16 June 2000.
11. There were many medical examinations and other communications which are not of relevance to the matter before this Tribunal at this time, except to note that GIO Australia made a decision on 25 October 2000 to accept liability for Mr Makedonas’ lower back strain (T33). The Respondent accepted the deemed date of injury to be 16 June 2000, and accepted that it was “minor soft tissue injury & temporary aggravation of underlying degenerative change at L5/S1 level” (T33).
12. Further medical reports were sought, various medical expenses, and hydrotherapy program expenses were accepted, and return to work plans were formulated and revised. There were various reports from rehabilitation providers which are in the documents (“the T-documents”) lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, (“the AAT Act”), before the Tribunal.
13. Eventually, a determination dated 30 April 2001 (T66) was made, placing the Applicant on a rehabilitation program as per the return to work plan dated to commence 30 April 2001. A list of duties was compiled (T65). However, it appears from the documents, that there was some dissatisfaction with Mr Makedonas’ compliance. On 1 June 2001, (T73), the Rehabilitation Delegate wrote to Mr Makedonas, requesting that he advise in writing the reasons for not having undertaken the requirements of his rehabilitation program, and warning that compensation could be suspended. The Delegate also attached a ‘Notice of Effects of Non Compliance’ which explained the effects of non compliance.
14. The Respondent, obviously dissatisfied with Mr Makedonas’ response, then issued a determination of 22 June 2001 (T76) with the effect of suspending the Applicant’s entitlements to compensation pursuant to the SRC Act, and wrote to Mr Makedonas telling him that his payments had been suspended because of his non-compliance with the rehabilitation program, (T76). In that determination, the date of the incident was given as 13 June 2000, and the claim described as “Aggravation Strain to Lower Back”. The Delegate informed Mr Makedonas of his appeal rights, which he exercised by letter of 6 July 2001 (T78A). The Respondent then made a further decision dated 20 January 2002 (T83), affirming the earlier decision (T76), stating that Mr Makedonas, had without reasonable excuse, failed to undertake the rehabilitation program, and again advising of appeal rights, this time to this Tribunal. The Applicant then lodged an application for review with the Tribunal dated 29 January 2002 (T2).
15. The matter has been listed for hearing of the substantive issues at the Tribunal, but it is necessary to deal with the threshold issue first. Accordingly, a hearing to determine jurisdiction was listed, and the arguments of the parties (the Respondent having made submissions first) which are below, with the Tribunal’s conclusions to follow.
THE RESPONDENT
16. The Mr Kelly argued for the Respondent that there was no reviewable decision before the Tribunal because:
· The Applicant’s compensation ceased pursuant to a decision made under section 37(7) of the SRC Act.
· The only decision before the Tribunal is the reconsideration by the Respondent dated 20 January 2002 (T83); that the decision is not reviewable because the decision-maker incorrectly failed to grasp that there was no determination under section 37(7) of the SRC Act that was amenable to reconsideration.
· The Applicant did not seek review of any decision made pursuant to section 37(1) of the SRC Act, which was a rehabilitation plan agreed to by the parties, and there is effectively nothing to review.
· Decisions such as Trajkovski v Telstra Corporation (1998) 81 FCR 459, and Chowdhary v Bayne [1999] FCA 41 have held that where section 37(7) operates to suspend an entitlement to compensation or a right to institute or continue proceedings under the SRC Act, the Tribunal can, in determining whether it has jurisdiction to review a “reviewable decision”, consider the reasonableness or otherwise of the refusal or failure to undertake the rehabilitation program. In each of these cases there was a reviewable decision whereas there is none properly available or made in this case.
· In this case, as distinct from Trajkovski (supra), the suspension on 20 January 2002 did not follow a broader determination ceasing liability for incapacity or refusing compensation for medical expenses.
· In Chowdhary v Bayne (supra), at paragraph 10(iii), Finn J stated as follows:
“10(iii) Where, but for the operation of s 37(7), a person would be entitled to appeal to the Tribunal for review of a decision made reviewable under the SRC Act: see SRC Act ss 60, 62 and 64; the Tribunal can consider the applicability of s 37(7) to such appeal for the purpose of coming to a conclusion as to whether it has jurisdiction in the matter: Trajkovski v Telstra Corporation Ltd, above; “It is not bound to decline jurisdiction simply because the jurisdictional question cannot be described as a “reviewable decision” ibid, 256-257.
10(iv) A Tribunal decision that, because of s 37(7), it does or does not have jurisdiction can be the subject of an application to this court under s 44 of the AAT Act and on such an application it is for the court to come to its own conclusion whether the facts are such that the Tribunal had jurisdiction to determine the appeal to it.”
· Directing the Tribunal’s attention to paragraph 47 of Re Duval andAustralian Postal Corporation [2002] AATA 306, Mr Kelly noted that the situation in that case was, as Senior Member Sassella pointed out, possibly one of requesting a reconsideration of the decision to engage in a particular program of rehabilitation, although the decision-maker took it as a request to review the suspension of entitlements under the SRC Act. He submitted that in any case, in Re Duval (supra), the request for reconsideration was out of time, and ineffective because the suspension pursuant to section 37(7) of the SRC Act was already in effect, and hence not reviewable.
· Mr Kelly also referred in his submissions to Re Quisv Comcare [2001] AATA 263, in particular in relation to paragraph 36 where Senior Member Sassella had considered the effects of the Applicant in that case having a reasonable excuse within the terms of the legislation for abandoning his rehabilitation program. He also referred to paragraph 40 in the same decision where the Tribunal had discussed when section 37(7) became self-executing.
· Mr Kelly also referred to paragraph 6 of Re Peisley and Comcare [2001] AATA 121 in which the Tribunal had stated its concurrence with the principles espoused in Trajkovski (supra) and Chowdhary (supra), that the Tribunal required a reviewable decision in addition to the determination made pursuant to section 37(7) of the SRC Act in order to be in a position to review the applicability of section 37(7) as a preliminary point.
· Referring to the letter of the Applicant at T78A, Mr Kelly asked the Tribunal to reject the possibility that it could be construed as seeking a reconsideration of the earlier determination regarding the rehabilitation program, rather that it was an appeal of the determination to suspend that program.
· Even if the Tribunal were minded to review the result of the operation of section 37(7) and found that the failure was reasonable, there was no power under the Administrative Appeals Tribunal Act 1975 (the “AAT Act”) or SRC Act that the Tribunal could exercise because s 37(7) is self-executing. The Applicant has rights of review to the Federal Court.
THE APPLICANT
17. Mr Hatzistergos argued on behalf of the Applicant as follows:
· The letter of the Applicant, written by him and dated 6 July 2001 (T78A/217A) is open to interpretation, and could be interpreted to be a request for reconsideration of the decision made pursuant to section 37(1) at T66, which mandated Mr Makedonas to commence a rehabilitation program on 30 April 2001, and entitled him to weekly payments of compensation.
· The Tribunal noted that the letter at T78A/217A from Mr Makedonas to his employer reads as follows:
“ I refer to your letter dated 22 June 2001.
Pursuant to Section 62 of the Safety Rehabilitation, Compensation Act, 1988, I request a reconsideration of your determination dated 22 June 2001.
The reasons for my request are as follows:
(i) You have failed to consider all medical evidence available to you.
(ii) You have failed to consider my treating doctors’ opinions.
(iii) You have failed to give appropriate weight to evidence in my favour.
(iv) You have failed to consult Dr. Rosenberg as to my present physical limitations.
(v)I have been denied natural justice.
I would appreciate if all the above factors can be appropriately dealt with and a proper reconsideration provided on my behalf. To simply rely on the opinions of your Doctors is a nonsense to say the least.
I look forward to receiving your consideration in due course.”
· Mr Hatzistergos submitted that the points made in the letter of the Applicant at T78A/217A about natural justice and medical reports were addressed in the decision, which followed. That decision (T76 of 22 June 2001) should therefore be construed as a “reviewable decision” subsequent to the decision at T66. That is, the letter of the Applicant at T78A/217A actually referred to the decision at T76, but could be interpreted to have been an appeal against the determination to impose a rehabilitation program made pursuant to section 37(1) of the Act (T66).
· Mr Hatzistergos cited many of the same authorities as the Respondent, including Trajkovski (supra). He also referred to Buck v Comcare (1996) 66 FCR 359. Referring to Re Martiniello and Comcare Australia (1994) 33 ALD 77, he submitted, referring to the Respondent’s argument in that regard, that in Re Martiniello (supra), there were no other reviewable decisions for the Tribunal to consider. The Tribunal noted that in Re Martiniello (supra), Members of the Tribunal affirmed the decision to suspend Mrs Martiniello’s compensation made pursuant to section 37(7) of the SRC Act on the basis that her failure to attempt the rehabilitation program given her, was unreasonable. No jurisdictional issue appears to have been raised in that case. In Re Buck (supra), the issue was whether the Applicant had without reasonable excuse failed to attend a medical examination ordered pursuant to section 57(2) of the SRC Act.
· In making his submissions, Mr Hatzistergos read extensively from Trajkovski (supra), and agreed that in later case law, review had been considered possible where there were additional decisions which I understood to mean decisions regarding other rights such as liability for compensation or medical expenses.
THE TRIBUNAL
18. The Tribunal has to take into account the legislation, case law and submissions of the parties to decide whether it has jurisdiction to review the decision made pursuant to section 37(7) of the SRC Act to suspend compensation rights to Mr Makedonas, invoked because he had failed “without reasonable excuse to undertake the rehabilitation program provided for him under section 37(1) of the above Act.”
19. The Tribunal recognises that workers’ compensation legislation is beneficial, and that is taken into account in decision-making under the SRC Act. However this is a case where the SRC Act is clear as interpreted by the Federal Court. The Tribunal must act according to law. In the Tribunal’s view, in the present context there is no room for it to assert jurisdiction if the law says it cannot.
20. The Tribunal was mindful that its powers in this matter are prescribed pursuant to the AAT Act, and the Safety Rehabilitation and Compensation Act 1988. The Tribunal in performing its role in relation to the SRC Act must be able to identify a reviewable decision as a first step, and must inquire into the existence and limits of its jurisdiction (Trajkovski (supra) and Chowdhary (supra)). In Trajkovski (supra), Tamberlin J stated:
“In the present case, in my view, the AAT had the competence to consider the limits of its authority and the existence of its jurisdiction. In order to perform its statutory duty to review the decision pursuant to the SRC Act, it was essential that the AAT come to a conclusion on the existence and limits of its jurisdiction. This necessarily involved a consideration of the applicability of s 37(7) and its effect. Thus it requires an examination of pertinent questions of fact and law which arise in making this determination. This is not a question of ‘reviewing’ any decision as to jurisdiction but of properly considering the threshold question of whether it has jurisdiction.”
21. There are a number of decided cases, which were of assistance in considering this matter. Both Counsel relied on Trajkovski (supra) and referred variously to other cases such as Buck (supra), Chowdhary (supra), Re Peisley (supra), Re Duval (supra) and Re Quis (supra).
22. I am indebted to Senior Member Sassella who made the following analysis with which I agree. He stated as follows in Re Quis (supra):
“Of the decided cases, two are most instructive. The Federal Court decision in Chowdhary v Bayne [1999] FCA 41 involved several primary decisions. In its earlier Tribunal phase, Re Anita Chowdhary and Comcare [1998] AATA 448, the Respondent had made several decisions that became reviewable decisions:
A primary decision-maker on 16 January 1996 decided to cease payments for the employee’s physiotherapy.
On 22 February 1996 a primary decision-maker decided to cease payment for the employee’s home help.
The employee sought reconsideration of these two decisions. The reconsideration generated a reviewable decision affirming the two original decisions on 17 April 1996.
The employee appealed the reviewable decision to the Tribunal (matter number A96/239).
On 29 May 1996 a primary decision-maker supposedly decided that s 37(7) applied with the result that payment of compensation was suspended from 29 May 1996.
This was affirmed in a purported reviewable decision on 29 May 1996.
The employee appealed to the Tribunal against this decision (matter number A96/299).
The Tribunal considered both applications for review at the same time in a hearing on 11 and 12 August 1997.
The Federal Court’s decision in Trajkovski (supra) was handed down on 6 March 1998.
The Tribunal handed down its decision on 22 June 1998. The Tribunal was aware of the decision in Trajkovski (supra) and decided that it lacked jurisdiction to review any of the decisions presented to it for review. It did consider, however, that it was obliged to consider whether s 37(7) should have operated at all. This was for the purpose of determining whether it had jurisdiction to review the decisions on physiotherapy and home help (A96/239). That is to say the Tribunal considered that it had to satisfy itself that the employee’s failure to engage in a specified rehabilitation program was “without reasonable excuse”.. The Tribunal accepted that because of the self-executing nature of section 37(7) of the SRC Act, the employee’s application for review in relation to that provision (A96/299) was incompetent. The Tribunal considered that the effect of section 37(7) was to deny it jurisdiction to review also the decisions in respect of physiotherapy and home help.
In the Federal Court Finn J noted a number of propositions. These included:
‘Where, as in the instant case, but for the operation of s 37(7), an employee would be entitled to appeal to the Tribunal for a review of a decision made reviewable by the Act, ie what would normally be a reviewable decision, the Tribunal can consider the applicability of s 37(7) for the purpose of coming to a conclusion as to whether it has jurisdiction in the matter.
A Tribunal decision that it does, or does not, have jurisdiction because of s 37(7) can be the subject of an appeal to the Federal Court under s 44 of the AAT Act. The Court will reach its own conclusion as to whether the Tribunal had jurisdiction to determine the appeal made to it.’
In the Chowdhary case (supra) itself this led to the following:
1. Section 37(7) apart, the Tribunal had jurisdiction to entertain at least the appeals relating to physiotherapy and home services, a reviewable decision having been made in respect of these.
2. The Tribunal was obliged to consider whether it had jurisdiction to entertain those appeals or whether the employee’s rights to appeal had been suspended.
3. The employee could appeal to the Federal Court from the Tribunal decision that it lacked jurisdiction. This is under s 44 of the AAT Act.
4. It was for the Federal Court to reach its own decision on whether the employee had a reasonable excuse under s 37(7) of the SRC Act.
In paragraph 12 of the decision Finn J stated:
“In consequence the AAT Act s 44 appeal will raise for direct consideration whether there was such an excuse. If there was, then the 29 May 1996 suspension of compensation payments lacked lawful foundation and the Tribunal’s declining of jurisdiction to entertain at least the physiotherapy and home services appeals was an error of law. If there was not, then s 37(7) holds sway.”
23. The Tribunal noted also from Re Peisley (supra) at paragraph 6 where Senior Member Kiosoglous stated:
“The Tribunal concurs with the parties before it, that the consequence of Trajkovski and Chowdhary is that the Tribunal requires a reviewable decision in addition to the determination made pursuant to sub-section 37(7) of the Act in order to be in a position to review the applicability of sub-section 37(7) as a preliminary point.”
24. The Tribunal noted that the Senior Member (in Re Peisley (supra)) then embarked on determining whether, as a matter of fact, he had a reviewable decision before him. He considered various documents, including letters of Mr Peisley and determinations of the Respondent to decide whether any could be characterised as reconsiderations of the determination which resulted in the institution of the rehabilitation program. He found none, and held that therefore he had no jurisdiction to review the substantive application.
25. The Tribunal also noted the following findings or comments of interest, as summarised by Senior Member Sassella in Re Quis (supra) at paragraph 30:
“The applicant’s letter of 25 November 1999 contained sufficient references to matters pertinent to the RTW program for it to be taken to be a request for reconsideration of the rehabilitation determination of 6 September 1999. This was a request under s 38(3)(b) of the Act.
That request was made out of time. This issue was not addressed by the Respondent’s delegate in the letter of 4 January 2000. That letter dealt only with the lack of reasonable excuse and did not refer to section 38 or the rehabilitation determination. The letter of 4 January did not constitute a reconsideration decision in response to the Applicant’s letter of 25 November 1999.
At the time of suspension of compensation entitlements under section 37(7) of the SRC Act, no reconsideration decision had been made as regards the Applicant’s rehabilitation program.
There was (and is) no provision in the SRC Act requiring the Respondent to make a reconsideration decision before section 37(7) may operate. Section 37(7) simply operates in the event of failure or refusal to undertake a rehabilitation program without reasonable excuse.
The SRC Act does not provide for a failure to make a decision to be deemed a reviewable decision.
There was no reviewable decision at the time of suspension of the Applicant’s entitlements on 4 January 2000. There being no reviewable decision, the Tribunal had no jurisdiction to consider the threshold question (“reasonable excuse”) of s 37(7) of the SRC Act.”
26. In Mr Makedonas’ case, the principles discussed in the cases abovementioned lead to the following conclusion, that the only issue the subject of a Tribunal appeal in the Makedonas case is the suspension of compensation payments pursuant to section 37(7) of the SRC Act. Unlike in Chowdhary (supra), there can be no suggestion that, regardless of section 37(7), the Tribunal has jurisdiction to entertain at least other appeals against reviewable decisions relating to such matters as cessation of liability for incapacity, physiotherapy or home services.
27. The Tribunal was mindful in making the finding above, of Mr Hatzistergos’ argument that the letter of Mr Makedonas of 6 July 2001 (T78A/217A) was open to interpretation, and could be interpreted to be a request for reconsideration of the decision at T66 which was the decision of the Respondent made pursuant to section 37(1) of the SRC Act, and provided for Mr Makedonas to commence a rehabilitation program on 30 April 2001, as well as entitling him to weekly payments of compensation. His submission was that the points made in Mr Makedonas’ letter at T78A were addressed in the decision which followed, (T76 of 22 June 2001), and it should therefore be construed as a “reviewable decision” subsequent to the decision at T66.
28. In deciding that the letter did not address the decision made pursuant to section 37(1) of the SRC Act which was dated 30 April 2001, the Tribunal noted that the letter at T78A/217A from Mr Makedonas to his employer referred unequivocally to the decision of 22 June 2001 which was the decision to suspend entitlement to compensation pursuant to section 37(7) of the Act. It was as follows:
“ I refer to your letter dated 22 June 2001.
Pursuant to Section 62 of the Safety Rehabilitation, Compensation Act, 1988, I request a reconsideration of your determination dated 22 June 2001.
The reasons for my request are as follows:
(i) You have failed to consider all medical evidence available to you.
(ii) You have failed to consider my treating doctors’ opinions.
(iii) You have failed to give appropriate weight to evidence in my favour.
(iv) You have failed to consult Dr. Rosenberg as to my present physical limitations.
(v)I have been denied natural justice.
I would appreciate if all the above factors can be appropriately dealt with and a proper reconsideration provided on my behalf. To simply rely on the opinions of your Doctors is a nonsense to say the least.
I look forward to receiving your consideration in due course.”
29. The Tribunal agreed with Mr Hatzistergos that the reconsideration at T83 discussed medical reports and the issue of natural justice, both raised in Mr Makedonas’ letter of 6 July 2001.
30. However neither the raising of the medical reports nor the reference to natural justice changed the nature of Mr Makedonas’ letter of appeal of 6 July 2001. His letter referred specifically to the decision of 22 June 2001, and he was availing himself of the appeal rights signalled to him in the decision of 22 June 2001, that is to appeal pursuant to section 62 of the SRC Act if he was dissatisfied with the determination of 22 June 2001. Accordingly the Tribunal rejected that submission of Mr Hatzistergos, as it was unable to construe the letter of Mr Makedonas of 6 July 2001 as an appeal against the decision made pursuant to section 37(1) of the Act.
31. The Tribunal was mindful that in Re Peisley (supra) and in the instant case, there was (and is), no reviewable decision. In other cases involving section 37(7) of the SRC Act such as Chowdhary (supra), there was a reviewable decision in respect of which the Tribunal could perform functions if it could find a method of assuming jurisdiction because s 37(7) had operated improperly. Accordingly, in the earlier cases it was possible to review other decisions if the Tribunal could find that section 37(7) should not have operated at all because the Applicant had a reasonable excuse for refusing or failing to undertake a rehabilitation program.
32. However in Mr Makedonas’ case, even if the Tribunal should find that the requirements for the operation of section 37(7) of the SRC Act have not been met, there is no determination involved in the operation of section 37(7) because of its manner of drafting.. There is then no determination available for reconsideration under section 62 or section 38(4) of the SRC Act. The instant case is even clearer than was Re Peisley (supra).In the instant case the Applicant did not seek under section 38(3)(b) of the SRC Act, a reconsideration of the terms of the determination that he undertake the rehabilitation program. It is not to the point that a review officer purported to reconsider the suspension but affirmed it on the basis that Mr Makedonas had without reasonable excuse failed to commence his rehabilitation program. That purported reconsideration was a nullity because it was not authorised by the SRC Act. Although it bears the signs of being a reviewable decision, it is not any such thing in law. Accordingly, the Tribunal finds that there is no reviewable decision in this matter, and that it has no jurisdiction to entertain the application to review the purported “reviewable decision”.
33. No reviewable decisions have been made in respect of such other types of compensation payments. The Tribunal was therefore not able to consider whether it had jurisdiction to entertain appeals on matters such as cessation of liability for incapacity or physiotherapy, because there were none in issue in Mr Makedonas’ case.
34. The Tribunal agreed with Mr Kelly’s submission that there was nothing for the Tribunal to review even if it should decide that the Applicant had a reasonable excuse for refusing or failing to undertake the rehabilitation program in question.
35. Sections 38(4) and 62 of the SRC Act are not available in relation to suspension of entitlements under s 37(7) of the Act. This is because each of these provisions requires that there is a determination to be reviewed internally by a Comcare review officer for it to operate. Section 37(7) of the SRC Act is self-executing and requires no decision by a Comcare delegate. The way that section 37(7) of the SRC Act is constructed is that it automatically operates if several conditions are met. These are: (i) the employee must fail to undertake a rehabilitation program provided for the employee under section 37 and (ii) that this must occur without any reasonable excuse. Should these two requirements be met, then the employee’s rights to compensation are suspended until he or she undertakes the program.That is what occurred with the Applicant in this case.
36. Mr Makedonas can appeal to the Federal Court from any possible Tribunal decision that it lacks jurisdiction pursuant to section 44 of the AAT Act.
37. It would then be for the Federal Court in such an appeal to reach its own decision on whether the Applicant had a reasonable excuse under s 37(7) of the SRC Act.
Decision
38. The Tribunal has no jurisdiction in respect of this application.
I certify that the 38 preceding paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member
Signed: .......................................................................................
AssociateDate of Hearing 20 January 2003
Date of Decision 10 March 2003
Counsel for the Applicant Mr J Hatzistergos
Solicitor for the Applicant Steve Masselos and Co
Counsel for the Respondent Mr B Kelly
Solicitor for the Respondent Ebsworth and Ebsworth Lawyers
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