MXYY and Comcare (Compensation) - [2019] AATA 40

MXYY and Comcare (Compensation) [2019] AATA 40 (22 January 2019)
Division:GENERAL DIVISION
File Number(s): 2018/4975
Re:MXYY
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Member Mark Hyman
Date:22 January 2019
Place:Canberra

The application for review of Comcare’s decision is dismissed.
........................................................................
Member Mark Hyman
Catchwords
PRACTICE AND PROCEDURE – application for dismissal – rehabilitation under the Safety, Rehabilitation and Compensation Act 1988 – closure of rehabilitation program and replacement with a new program - whether a determination under subsection 37(1) relates to a general or specific rehabilitation requirement – rehabilitation determination is for a specific program tailored to the individual - closure of program leaves no decision to be reviewed – application for review dismissed
Legislation
Acts Interpretation Act 1901, s 33
Administrative Appeals Tribunal Act 1975, s 42B
Legislation Act 2003, s 13
Safety, Rehabilitation and Compensation Act 1988, ss 36, 37, 41
Cases
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384
K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309
Kitty and Australian Postal Corporation [2003] AATA 164
McGuinness v Comcare [2007] FMCA 1486
Pascoe v Australian Postal Corporation [2004] FCAFC 4
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Wood and Comcare [2013] AATA 469
Secondary Materials
Guidelines for Rehabilitation Authorities 2012, Comcare
REASONS FOR DECISION
Member Mark Hyman
22 January 2019

This decision concerns whether the applicant, who is known by the pseudonym MXYY can maintain an objection to her proposed rehabilitation, or whether her matter before the tribunal should be dismissed. The applicant has a claim for a psychological condition (major depressive disorder, single episode (unspecified)), with a deemed injury date of 17 December 2011, for which Comcare, the respondent, has accepted liability under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act). On 13 June 2018 the applicant’s rehabilitation authority (also her employing agency) determined that she should undertake a rehabilitation program, based in part on a report by an independent consultant psychiatrist. The applicant requested reconsideration of the determination and on 25 July 2018 Comcare affirmed the determination. On 30 August 2018 the applicant sought review by this tribunal, also seeking a confidentiality order and a stay of the decision.
On 14 September 2018 the applicant’s rehabilitation case manager, Mr Alan Burrows, advised that the rehabilitation provider engaged for MXYY was unable to continue providing the rehabilitation program because of the resignation of relevant staff. Mr Burrows advised that the rehabilitation program would be closed, and a new provider engaged to develop a new program. Mr Burrows also advised that the stay and confidentiality order were opposed, apparently on the basis that the rehabilitation program would not continue, and that therefore neither the stay nor the confidentiality order would have any utility. On 18 September 2018, Comcare’s legal representatives, Australian Government Solicitor (AGS), contacted the applicant and the tribunal suggesting that with the closure of the rehabilitation program there was no longer a decision to be reviewed by the tribunal and that she should withdraw her application for review. If not, Comcare would seek to have the matter dismissed. The applicant declined to withdraw her application.
The matter came before the tribunal in an interlocutory hearing on 5 October 2018. The applicant appeared in person. Mr Henry Chang of AGS appeared for Comcare. At the hearing it was clear that if the matter were to be dismissed the stay application would fall away; as a result the hearing focused on Comcare’s argument that the matter should be dismissed. If the matter was not dismissed, Comcare would not oppose a stay or confidentiality application.
The applicant argues that her medical practitioners, including her psychiatrist, oppose her participation in any rehabilitation program, and that her application for review extends to any proposal to have her undertake a rehabilitation program, whether the program now closed or the program that is replacing it. At the hearing it became clear that the matter rested on the construction of subsection 37(1) of the SRC Act: on one construction the review extended to any rehabilitation program under the SRC Act; on another, it extended only to the specific program that had now been closed. Mr Chang was not in a position to argue that question at the hearing. The hearing was adjourned and the parties agreed to make written submissions on the proper construction of the subsection. The AGS submission was received on 16 October 2018 and the applicant’s submission in reply on 8 November 2018.
ISSUES
The issues before the tribunal are:
·the correct construction of subsection 37(1) of the SRC Act;
·whether, in light of that construction, matter 2018/4975 should be dismissed;
·if not, whether a stay on the operation of the decision under review should be granted; and
·whether a confidentiality order should be made, and if so, the scope of that order.
LEGISLATION
The matter turns on the construction of section 37(1) of the SRC Act, which falls within Division 3 of Part III of that Act. Part III deals with rehabilitation. Subsection 37(1) can only be understood within the context provided by sections 36 and 37, other sections in Part III and the wider provisions of the SRC Act. Sections 36 and 37 read as follows:
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.
(4A) However, subsection (4) does not operate to suspend the employee’s right to compensation for the cost of medical treatment that is payable under section 16.
(5) The relevant authority shall pay the cost of conducting any examination of an employee and is liable to pay to the employee an amount equal to the amount of the expenditure reasonably incurred by the employee in making a necessary journey in connection with the examination or remaining, for the purpose of the examination, at a place to which the employee has made a journey for that purpose.
(6) In deciding questions arising under subsection (5), a relevant authority shall have regard to:
(a) the means of transport available to the employee for the journey;
(b) the route or routes by which the employee could have travelled; and
(c) the accommodation available to the employee.
(7) Where an employee’s right to compensation is suspended under subsection (4), compensation is not payable in respect of the period of the suspension.
(8) Where an examination is carried out, the person or persons who carried out the examination shall give to the rehabilitation authority a written assessment of the employee’s capability of undertaking a rehabilitation program, specifying, where appropriate, the kind of program which he or she is capable of undertaking and containing any other information relating to the provision of a rehabilitation program for the employee that the rehabilitation authority may require.
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.
(2) If a rehabilitation authority makes a determination under subsection (1), the authority may:
(a) provide a rehabilitation program for the employee itself; or
(b) make arrangements with an approved program provider for that provider to provide a rehabilitation program for the employee.
(2A) A determination under subsection (1) is not a legislative instrument.
(3) In making a determination under subsection (1), a rehabilitation authority shall have regard to:
(a) any written assessment given under subsection 36(8);
(b) any reduction in the future liability to pay compensation if the program is undertaken;
(c) the cost of the program;
(d) any improvement in the employee’s opportunity to be employed after completing the program;
(e) the likely psychological effect on the employee of not providing the program;
(f) the employee’s attitude to the program;
(g) the relative merits of any alternative and appropriate rehabilitation program; and
(h) any other relevant matter.
(4) The cost of any rehabilitation program provided for an employee under this section shall be paid by the relevant authority in relation to that employee.
(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.
(7A) 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.
(8) Where an employee’s right to compensation is suspended under subsection (7), compensation is not payable in respect of the period of the suspension.
The term “rehabilitation authority” is defined in section 4 of the SRC Act. The meaning varies according to the kind of employing agency; where the employing agency is a Commonwealth authority, the rehabilitation authority is the principal officer of that authority. Under subsection 38(1) of the SRC Act, the rehabilitation authority must inform the affected employee of a determination under subsection 37(1) and provide supporting information and explanation of the determination; under subsections 38(2)-(3) the employee may make a written request to Comcare for review of the determination, and under subsection 38(4) Comcare must undertake a review and make a decision accordingly. By virtue of the provisions set out in sections 60 and 64 of the SRC Act, a determination under subsection 38(4) is reviewable by this tribunal.
The question of construction that arose at the hearing involved the phrase at the end of subsection 37(1): “…should undertake a rehabilitation program”. On the face of it, and viewed in isolation from the remainder of the section (and from the preceding section), the phrase can be understood to mean a rehabilitation program in general, or alternatively a specific identified rehabilitation program. In other words, the question is whether a determination made under the subsection would identify an employee as suitable for rehabilitation generally, or suitable for a particular identified rehabilitation program. If the first, then the determination under review in the present matter would remain on foot while a new rehabilitation program is identified and the applicant’s application for review would continue; if the second, then the determination would cease to have effect when the rehabilitation program was closed and no decision would remain to be reviewed. In the latter circumstances the applicant might need to seek review of the separate determination relating to her new rehabilitation program.
THE ARGUMENTS OF THE PARTIES
The applicant, who it appears is not legally trained, suggested that there was no uncertainty of construction relating to subsection 37(1) to be resolved, as the statute is well understood. But the basis of her position is clear: she objects to any rehabilitation program at all, at least at the present time, and she has the support of her doctors in that position. Further, she asserts that her rehabilitation authority has breached its own guidelines and has disregarded considerations that should be taken into account in its decision-making. The applicant also maintains her applications for a stay and a confidentiality order.
AGS, on behalf of Comcare, has made submissions contending that:
a)the construction of subsection 37(1) is to be undertaken in the context of the entire rehabilitation part of the SRC Act, and specifically with regard to sections 36, 37, and 41 of that Act;
b)the report made under subsection 36(8) of the SRC Act will specify a particular rehabilitation program “where appropriate” and it will be appropriate where the employee is capable of rehabilitation;
c)the suspension of an employee’s compensation entitlements under subsection 37(7) occurs where the employee fails to undertake a rehabilitation program “under this section”, which can only be a reference to a specific rehabilitation program determined under subsection 37(1);
d)the listing of matters in subsection 37(3) to which regard is to be had in determining a rehabilitation program under subsection 37(1) relies heavily on references to “the program”, implying it is a specific program rather than a general determination that rehabilitation is to be undertaken; and
e)the Guidelines for Rehabilitation Authorities 2012 (the Guidelines), a legislative instrument made under section 41 of the SRC Act, clearly treat a rehabilitation program made under section 37 as a specific rather than general program.
CONSIDERATION
There is a long line of authority that any task of statutory construction examines the text of the statute not as a set of isolated provisions or phrases but in context, taking account of the purpose of the statute. In K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309 Mason J noted (at 315):
Problems of legal interpretation are not solved satisfactorily by ritual incantations which emphasize the clarity of meaning which words have when viewed in isolation, divorced from their context. The modern approach to interpretation insists that the context be considered in the first instance, especially in the case of general words…
Similarly, in CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 Brennan CJ, Dawson, Toohey and Gummow JJ stated (at 408):
[T]he modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses 'context' in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy.
In Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 the plurality (McHugh, Gummow, Kirby and Hayne JJ) stated (at 381):
The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole". In Commissioner for Railways (NSW) v Agalianos [(1955) 92 CLR 390], Dixon CJ pointed out that "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed". Thus, the process of construction must always begin by examining the context of the provision that is being construed. [footnotes omitted]
The SRC Act provides a detailed scheme dealing with both the payment of various forms of compensation to employees who are hurt or become ill through employment, and the provision of rehabilitation to injured employees to help them to return to the workplace. The rehabilitation provisions occupy therefore a central place in the Act; the emphasis is on facilitating an injured employee’s reintegration into the workplace. The scheme of decision-making set out in sections 36, 37 and 38 demonstrates a clear distinction between section 36, which provides for the assessment of the employee to establish his or her capability for rehabilitation and identify preferred rehabilitation options; section 37 which then allows a specific, individually tailored rehabilitation program to be determined; and section 38 which provides for review of determinations made under section 37 requiring injured employees to undergo rehabilitation.
Subsections 36(1), 36(2) and 36(3) provide for an examination and assessment of an employee’s suitability and readiness for rehabilitation to take place; subsection 36(8) sets out the result of that assessment. The report made by the examining body under the last subsection:
a)assesses the employee’s capability for rehabilitation;
b)specifies, where appropriate, the kind of rehabilitation that the employee is capable of undertaking; and
c)provides other information as required.
Subsections 37(1)-(4) then set out successively how a rehabilitation program is instituted:
a)subsection (1) provides for a rehabilitation program to be determined by the rehabilitation authority (it is the only subsection of section 37 to provide explicitly for a determination to be made);
b)subsection (2) allows the provider to be identified, and in particular whether the program is to be provided by the rehabilitation authority or outsourced;
c)subsection (3) outlines considerations to be taken into account in designing and instituting the program; and
d)subsection (4) provides for the relevant authority to bear the cost of the rehabilitation program.
In the subsections of section 37 listed above, subsection 37(3) is especially telling: it refers to the determination made under subsection 37(1) and specifies a long list of considerations that the determining authority is to have regard to in arriving at that determination. These considerations can only relate to a specific rehabilitation plan, as is shown by the repeated references to “the program” in paragraphs 37(3)(b), (c), (d), (e) and (f) and to “any alternative and appropriate rehabilitation program” in paragraph (g); it is not a reasonable interpretation to suggest that these references relate to a threshold decision that a person should undertake rehabilitation.

That also flows from a consideration of the purpose of subsection 37(1): there is no requirement for the subsection to identify a general need for rehabilitation if an assessment made under section 36 has already identified that general need, in the report made under subsection 36(8). If such a reading were adopted, subsection 37(1) would appear to be duplicative of subsection 36(8).
I accept Comcare’s argument that the reference in subsection 37(7) to a failure to undertake a rehabilitation program must refer to a specific program. That follows from the phrase “a rehabilitation program provided for the employee under this section”, which clearly implies a specific program for the rehabilitation of that particular employee. That construction is reinforced by the reference later in the subsection to suspension of compensation entitlements “until the employee begins to undertake the program”.
On the other hand, I do not find all of Comcare’s arguments persuasive. The references in the Guidelines made under section 41 of the SRC Act show that those Guidelines were drafted on the understanding that a specific rehabilitation program was intended in subsection 37(1), but subsidiary legislation cannot be used as a guide to the meaning of the primary legislation; only the reverse is true. Section 13 of the Legislation Act 2003 provides that the meaning of expressions used in delegated legislation is the same as in the primary legislation; thus the meaning of the delegated legislation may be derived from the primary legislation but interpretation does not flow in the opposite direction.
It does not appear that the construction of subsection 37(1) has been the subject of specific attention in other cases. It is apparent, however, that where cases touch on the operation of subsection37(1), they generally appear to proceed on the assumption that the rehabilitation determination made under subsection 37(1) is a specific rather than general determination: see for example Pascoe v Australian Postal Corporation [2004] FCAFC 4 (at [14]); Kitty and Australian Postal Corporation [2003] AATA 164 (at [19]); Wood and Comcare [2013] AATA 469 (at [21]-[27]); McGuinness v Comcare [2007] FMCA 1486 (at [79]-[83]).
My conclusion is that the determination made under subsection 37(1) is for a specific rehabilitation program. It follows that when the rehabilitation program determined on 13 June 2018 was closed there was no longer a decision that could be reviewed by the tribunal.
The applicant, however, wishes to object to undertaking any form of rehabilitation. She cannot do so on the basis of her current application for review, as no decision remains to be reviewed. If she wishes to review the new rehabilitation program she would need to make a separate application for review of the reconsideration determination relating to that program. An extension of time may be needed for her to do so. This is not very convenient for the applicant, and I might remark that the complexities of the current position could have been avoided if Comcare had changed the rehabilitation provider rather than closing the program, as subsection 37(2) would have permitted (see Acts Interpretation Act 1901, subsection 33(3)). The rehabilitation program could have been amended or varied as necessary; but the applicant’s review application would have remained on foot.
There is no utility to a stay order in the present circumstances, as no operative decision remains for a stay to act on. The applicant’s request for a confidentiality order, however, is a different matter. The basis for that request was to protect her son, especially in light of this tribunal’s practice in publishing its decisions. My understanding is that Comcare’s opposition to a confidentiality order was based on an expectation that the matter would be dismissed. I can see no reason why a confidentiality order should not be granted so that in the published decision the applicant’s name is obscured through use of a pseudonym, and I have made an order accordingly.
For the reasons given above, the application for review is dismissed under paragraph 42B(1)(a) of the Administrative Appeals Tribunal Act 1975.
I certify that the preceding 25 (twenty-five) paragraphs are a true copy of the reasons for the decision herein of Member Mark Hyman.
…………………………………………………
Associate
Dated: 22 January 2019
Date of hearing: 5 October 2018
Date last submissions received: 8 November 2018
Applicant: In Person
Counsel for the Respondent: Mr Henry Chang, Australian Government Solicitor