O’Hara and Comcare (Compensation)

O’Hara and Comcare (Compensation) [2024] AATA 422 (13 March 2024)
Division:GENERAL DIVISION

File Number(s): 2023/0577
Re:Damon O’Hara
APPLICANT

ComcareAnd
RESPONDENT

INTERLOCUTORY DECISION
Tribunal:Mr S. Webb, Member
Date:13 March 2024
Place:Canberra

The decision under review is affirmed.
………………[SGD]……………………
Mr S. Webb, Member
Catchwords
WORKERS’ COMPENSATION – compensation for injury – review of past rehabilitation program – utility – purchase of electronic application subscriptions – claim for reimbursement of costs – insufficient evidence to include application subscriptions in rehabilitation program – decision affirmed
Legislation
Administrative Appeals Tribunal Act 1975 s 42B, 43
Safety, Rehabilitation and Compensation Act 1988 ss 4, 16, 36, 37, 39
Cases
O’Hara and Comcare [2023] AATA 3824
Mr S. Webb, Member
13 March 2024

Damon O’Hara claimed compensation for work-related injuries. Comcare accepted liability and paid him compensation under the Safety, Rehabilitation and Compensation Act 1998 (SRC Act). Mr O’Hara was assessed for rehabilitation purposes and engaged in a rehabilitation program. Mr O’Hara challenged the effectiveness and utility of the rehabilitation program and he made several applications for review by the Tribunal. A number of jurisdictional and technical issues arose.
This application is for review of a Comcare reconsideration decision[1] to affirm a determination of the rehabilitation authority, the Department of Foreign Affairs and Trade (Department), on 26 September 2022 requiring Mr O’Hara to undertake a rehabilitation program (Rehabilitation Program). [2] These decisions required Mr O’Hara to undertake a rehabilitation program determined for the purposes of s 37(1) of the SRC Act following an assessment under s 36 of that Act.
[1] T1.1.
[2] T5
In the course of the Tribunal proceedings, the rehabilitation program came to an end. Comcare applied for dismissal of the proceedings on utility grounds under s 42B of the Administrative Appeals Tribunal Act 1975 (AAT Act). I dealt with these matters in O’Hara and Comcare [2023] AATA 3824 (Interlocutory Decision). The question of utility could not be dealt with to finality on the materials then available.
Additional materials have now been given to the Tribunal. The parties have made submissions in respect of relevant matters, and each has been given a reasonable opportunity to present their respective case. The issue of utility and the merit of Mr O’Hara’s application can now be determined.
As will appear, I am not persuaded the application lacks utility to the extent it has no reasonable prospect of success. There is relevant and potentially probative material before the Tribunal which requires careful examination and analysis.
The central issue raised by Mr O’Hara’s application which remains to be determined relates to subscriptions he purchased and his assertion these should be included in the rehabilitation program under review.
Facts
Many of the background facts were set out in the Interlocutory Decision. Insofar as they are relevant, I adopt those facts. These and other relevant background facts established by the materials before the Tribunal follow.
Mr O’Hara has accepted compensation claims in respect of post-traumatic stress disorder (PTSD) and irritable bowel syndrome (IBS) under the SRC Act.[3]
[3] T1.1, folio 7.
On 24 March 2022, Dr Lewis Ryan, Mr O’Hara’s treating general practitioner, issued a Certificate of Capacity for Work in which he stated:
Mr O’Hara’s condition, PTSD [relating to events in 2008], is triggered by exposure to his workplace. Exposure to these triggers in an uncontrolled environment is hindering his recovery. I recommend that it may be beneficial for [Mr O’Hara] to transition to a new workplace and a new department…[4]
[4] ST4, folio 19.
On 30 March 2022, Darcy Scanlan, a rehabilitation consultant, produced a Compensation Rehabilitation Assessment Report[5] in which she found Mr O’Hara was capable of undertaking a rehabilitation program.[6]
[5] ST5.
[6] Ibid, folio 29.
A rehabilitation program was determined for Mr O’Hara, which commenced on 12 April 2022 and was expected to be completed by 1 October 2022.[7]
[7] ST6.
On 22 July 2022, the rehabilitation program was altered.[8] The expected end date of the program remained unchanged.
[8] ST8.
On or about 20 September 2022, Ms Scanlan prepared a replacement draft rehabilitation program for comment by Mr O’Hara and Karen Baldwin, Mr O’Hara’s Departmental Case Manager.[9] The goals of the draft program were:
(a)Interim goal: Mr O’Hara will focus on recovery and skills development to permit transition to suitable work; and
(b)Final goal: Employer and WRP will arrange work in another suitable role.[10]
[9] T3, folio 14.
[10] T4, folio 19.
The draft program includes a table of actions and outcomes, in which provision was made for:
(a)Annual subscription to smartphone sleep application at a cost of $45.99;
(b)Annual subscription to smartphone health applications including an exercise tracker and a diet tracker at a cost of $107.98; and
(c)Annual subscription to language training software at a cost of $129.99.[11]
[11] T4, folio 27.
The draft program was annotated on 23 September 2022 and the following comments are noted in respect of the annual subscriptions:
Commented [DS24]: Karen are we able to put these in?
Would they need to be 93and then buy an itunes gift card and get a receipt which shows which apps have been purchased?
Commented [KB25R24]: The first two items are not part of rehab and would be considered medical treatment that could be considered by treaters. Claims would be made under medical services for consideration by Comcare.
Commented [KB26]: [The language training subscription] Not part of rehab and the goals of the program. This could be considered outside the plan by DFAT if there was a benefit. This is not something the WRP should be funding.[12]
[12] Ibid.
On 23 September 2022, Ms Baldwin signed a document stating she had made the determination that a rehabilitation program amendment will be implemented for Mr O’Hara and setting out the matters she considered under subsection 37(3) of the SRC Act, including:
a) consideration has been given to the initial needs assessment conducted by Heli Hine, Rehabilitation Provider, The Rehabilitation Specialists, dated 13 May 2021 and Darcy Scanlan, Rehabilitation Provider, IPAR, dated 30 March 2022 conducted under s36(8) of SRC Act. 'Consideration has also been given to the independent medical assessment conducted by Dr Scott Chambers MLCOA dated 8 June 2021.
b) A return to work program will provide structure and support to Mr O'Hara that will aim to reduce the human and financial cost associated with the claim as we work towards the interim, and long term goals as outlined or modified during the program.
c) The cost of the program and elements within the program are reasonable and will aim to achieve the goals of the program as Mr O'Hara continues with his recovery.
d) The program will enable Mr O'Hara to be supported to work towards meeting the interim and final goals of the program. The final goal of the program is for Mr O'Hara to obtain new employment with a new employer at his current level and at fulltime hours, however the program may be modified should circumstance change and will be in consultation with all relevant parties.
e) The program is an important part of supporting Mr O'Hara in his recovery, provide job seeking opportunities and when identified, to move into a suitable role. The final goal will be modified when/if required based on−progress and medical advice/capacity.
f) Mr O’Hara has been consulted and has provided comment in the development of the amended program. The recommendations from his GP and other treaters has been considered (as provided in writing via certificates or other reports in the program. Mr O'Hara has been provided opportunity to seek comment on and to seek clarification on the program and its elements.
g) The return to work program is consistent with rehabilitation goals. The program is best managed externally using a rehabilitation provider with psychology skills and experience who can engage with treaters, other supports and a new employer.
h) The best way to support the goals of the rehabilitation program is with external assistance using vocational counselling, coaching, work trial (if available), job seeking and redeployment. The program ensures all parties are aware of their roles and responsibilities to ensure 'timely and ongoing management of Mr O'Hara's rehabilitation and return to suitable employment The program is able to be varied and amended should the goal change during implementation. Regular reviews will determine if the program is on track or needs to be modified based on medical advice and capacity.[13]
[13] Ibid, folio 45.
On 26 September 2022, Ms Baldwin determined to approve the amended rehabilitation program.[14] The rehabilitation program commenced on 26 September 2022, the day on which it was signed by the delegate,[15] Karen Baldwin, and it was expected to end on 1 April 2023.[16]
[14] T5.
[15] T5, folio 43.
[16] Ibid, folio 34.
The ‘interim goal’ and the ‘final goal’ of the 26 September 2022 rehabilitation program were specified.[17] The ‘final goal’ was expressed in the following terms: “Employer and WRP will arrange work in another suitable location”.[18] The ‘Expected final goal commencement date’ was 1 April 2023.[19] Mr O’Hara’s responsibilities in respect of ‘Treatment participation’, ‘Medical case reviews’, ‘Engagement with workplace during redeployment’, ‘Communication’, ‘Documentation’ and ‘Job seeking’ were set out in tabular form.[20] The Rehabilitation Case Manager’s responsibilities in respect of ‘Communication’, ‘Engagement with workplace during redeployment’ and ‘Documentation’ were also set out in tabular form.[21] The Workplace Rehabilitation Provider’s responsibilities were also tabulated with specific budget allocations, namely:
Medical case conference reviews … $1,587.84
Communication … $4,962.00
Reporting … $793.92
Job seeking/Vocational counselling … $1,190.88
Travel … $1190.88[22]
[17] T5, folio 35.
[18] Ibid.
[19] Ibid.
[20] Ibid, folios 35-38.
[21] Ibid, folios 39-40.
[22] Ibid, folios 41-42.
The rehabilitation program included a work trial.[23] The total cost of the rehabilitation program was $9,725.52.[24]
[23] Ibid, folio 42.
[24] Ibid.
The approved rehabilitation program did not include provision for the annual subscriptions which had been included in the draft revised program (see paragraph 12, above).
On 26 September 2022, Mr O’Hara signed the rehabilitation program determination document[25] and his comments on the rehabilitation program were included.[26] Mr O’Hara made the following observation:
The program lacks action toward achieving effective recovery or a focus on real action – it is a bureaucratic template which provides a vehicle for the payment of WRP fees. To date all rehabilitation activity has been led by the injured worker – RCM and WRP add an additional complicating layer, requiring compliance with templated plans but which have resulted in no further improvement. Concrete steps for recovery and skills development (for re-employment) have been added by the employee but rejected in the drafting stage. Without concrete steps for recovery and rehabilitation this plan will fail.[27]
[25] Ibid, folio 43; T6 refers.
[26] Ibid, folio 44.
[27] Ibid, folio 44.
Mr O’Hara made the further observation in an email to Ms Baldwin:
I acknowledge that the RP is only one element of the overall strategy that the rehab authority might take to achieve a successful outcome in this case. So while the line items I proposed in this discussion were rejected from the RP, I hope that my employer (and rehab authority) keeps the big picture in mind and will support the requests… whatever the mechanism is used if the RP is not suitable.[28]
[28] T6, folio 46.
Arrangements for a suitable work trial for Mr O’Hara were considered in the context of a course of study Mr O’Hara applied to undertake. The course was not approved as a component of the rehabilitation program, but it was approved for funding by the Department.[29] These considerations continued over an extended period, until 3 August 2023, at least.[30] Mr O’Hara was accepted into this course, which was scheduled to begin on 6 March 2023,[31] and the Department agreed to fund the training outside usual processes for training.[32]
[29] ST13.6, folio 82.
[30] See ST9, ST10, ST13.6, ST15-ST25.
[31] ST10, folio 64, ST16.
[32] Ibid.
The evidence before the Tribunal does not establish that the Department agreed to fund the annual subscriptions Mr O’Hara wanted to include in the rehabilitation program.
On 5 October 2022, Ms Scanlan sent an email to Mr O’Hara which included the following request:
Medical apps
Are you able to send through the apps we are aiming to talk with the GP about? [33]
[33] Applicant’s submission, 8 September 2023, Attachment A13, page 3.
On 17 October 2022, Ms Scanlan sent an email to Mr O’Hara is which she stated:
Medical apps
I am going to try and get an email for Dr Ryan so I can try and get something from him endorsing the apps. I’ll keep you updated.[34]
[34] Ibid, page 2.
On 26 October 2022, Mr O’Hara addressed a letter to the Principal Officer of the Rehabilitation Authority and the Comcare Reconsiderations Officer.[35] In the letter he made the following 2 requests:
11. I request Comcare reconsider whether this s 37 determination was made appropriately…
12. I request the Rehabilitation Authority consider whether the current delegate has the appropriate experience, training and aptitude to exercise the delegation.[36]
[35] T8.
[36] Ibid, folio 53.
On 18 November 2022, Mr O’Hara attended a medical review with Dr Ryan with Ms Scanlan in attendance. Later that day, Mr O’Hara provided details of the review in an email to Ms Baldwin and Ms Scanlan which included:
5. Dr Ryan provided a medical certificate from today until 5 January 2023. Attached.
- Action: …
- Action: Note medical support for iPhone apps discussed with RCM and WRP. I will claim these from Comcare.[37]
[37] ST13.5, folio 76.
There is no evidence Mr O’Hara did so.
Dr Ryan’s medical certificate of 18 November 2022 was not included in the T documents provided to the Tribunal under s 37 of the AAT Act. Under directions issued on 9 January 2024, the Respondent was to give the Tribunal and Mr O’Hara the medical certificate by 23 January 2024. This was done on 6 February 2024. The medical certificate contains Dr Ryan’s recommendations for psychological, psychiatric, cardiac and dietician reviews, pharmacological treatments, PTSD support, use of ‘Health apps’ and review of captured data by Mr O’Hara’s GP, psychologist and psychiatrist in regular appointments.
The recommendations in respect of ‘Health apps’ are as follows:
As can be seen, Dr Ryan’s recommendations were in respect of a sleep tracker, a pedometer, a calorie counter, and an ECG for HRV analyser (collectively Health apps). There is no evidence Mr O’Hara lodged a claim with Comcare in respect of the annual subscriptions for these Health apps.
On 23 November 2022, Comcare issued a reconsideration decision to affirm the original determination on 26 September 2022.[38]
[38] T1.1.
On 29 November 2022, Ms Scanlan provided an email report to Ms Baldwin in respect of the medical review conducted with Mr O’Hara and Dr Ryan in which she stated:
We spoke of the phone applications that [Mr O’Hara] would like to be paid for as part of his rehabilitation. Dr Ryan has endorsed these and added them to the certificate. I have asked [Mr O’Hara] if he would like me to get in contact with Comcare to see if they will pay for the apps, but are yet to receive a response.[39]
[39] ST13.4, folio 75.
On 5 January 2023, Dr Ryan issued a medical certificate in which he set out treatment recommendations and plans.[40] The second page of this medical certificate is missing from the ST documents filed under s 38AA of the AAT Act. Under directions issued on 9 January 2024, the Respondent was to give the Tribunal and Mr O’Hara the complete medical certificate by 23 January 2024. The complete medical certificate was filed on 6 February 2024. In the certificate, Dr Ryan repeated his recommendations in respect of the Health apps.
[40] ST11.
On 28 January 2023, Mr O’Hara lodged an application for review of Comcare’s 23 November 2022 reconsideration decision by the Tribunal.
On 7 March 2023, Mr O’Hara responded to a proposed alteration to the rehabilitation program and stated:
I object to the Rehab Plan on the basis that I believe it is not necessary. There is no requirement in the [SRC] Act for a RP to exist. An injured worker can have periods when they are not covered by an RP. This RP does not have any measurable rehabilitation outcomes relevant to my case and is therefore, in my opinion, a burden on me that exceeds any (ie. nil) benefit.
It is also an unnecessary cost to the taxpayer for no relevant benefit.[41]
[41] ST12, folios 68-69.
On 17 March 2023, Ms Baldwin replied, stating:
Your current rehabilitation program is due to end on 1 April 2023. As delegate for the Rehabilitation Authority under the [SRC Act] I have taken your concerns into consideration, have considered s 37(3)(a)-(h) of the SRC Act and have determined that a rehabilitation program will not be provided post 1 April 2023. This decision will be reconsidered should the work trial commence, or there is a change in circumstances, or a medical assessment is conducted in accordance with s36 of the SRC Act recommending that a rehabilitation program be provided.[42]
[42] Ibid, folio 68.
Even though the ‘final goal’ of the rehabilitation program had not been achieved, and consideration of a work trial was then ongoing, the rehabilitation program determined on 26 September 2022 for Mr O’Hara came to an end on 1 April 2023.
A further rehabilitation program was drafted by Ms Scanlan in July 2023. Relevantly, the draft included the following item:
Assist [Mr O’Hara] to request Rehabilitation aids including health based smart phone app subscriptions and re-training to improve health and job prospects.[43]
[43] Exhibit 1, A04, page 10.
Ms Baldwin provided the following comment in respect of this item:
Commented [KB6]: As RCM I am not able to support this in this plan given they are matters currently being addressed by other avenues. Can be discussed for future plan if appropriate.[44]
[44] Ibid.
On 15 November 2023, I issued the Interlocutory Decision which, in part, dealt with the utility of application 2023/0577 and relevantly concluded:
48. Mr O’Hara’s asserts he purchased items set out in a draft rehabilitation program proposed by Ms Scanlan on 20 September 2022 which were not included in the program determined on 26 September 2022. Mr O’Hara’s assertion is not presently supported by probative material. The particular items are:
a) annual subscription to smartphone sleep application;
b) annual subscription to smartphone health applications including exercise tracker and diet tracker;
c) annual subscription to language training software.[45]
[45] T4, folio 27.
…
50. As notes to the draft rehabilitation program reveal, the annual subscriptions to smartphone applications were considered to be medical treatment or services, not part of Mr O’Hara’s rehabilitation, and the language training subscription was considered to be outside the goals of the rehabilitation plan for Mr O’Hara.[46]
[46] Ibid.
51. In an email to Ms Scanlan and Ms Baldwin on 18 November 2022, Mr O’Hara referred to a medical certificate issued by Dr Ryan from today until 5 January 2023 (which does not appear in the documents given to the Tribunal):
Action: Note medical support for iPhone apps discussed with RCM and WRP.
I will claim these from Comcare.[47]
52. On the available materials, I am unable to determine if he did so under s 16 or s 39 of the SRC Act. I note Dr Ryan’s 5 January 2023 medical certificate (which is incomplete) refers to the medical value of smartphone applications the doctor identified.[48]
53. Nevertheless, the utility of the Tribunal proceedings hinges on this point if it is established by evidence:
a) Mr O’Hara purchased the subscriptions set out in paragraph 33; and
b) he did not claim compensation for these purchases under s 16 or s 39 of the SRC Act.
54. In those circumstances, having regard to the defined meaning of ‘rehabilitation program’ in s 4(1) of the SRC Act, the question whether the subscriptions are capable of inclusion and should be included in the rehabilitation program determined on 26 September 2022 would be capable of being decided by the Tribunal on review. Should the question be positively decided, this would have the practical effect of enabling Mr O’Hara to claim reimbursement of the costs he incurred purchasing the subscriptions. Thus, if the facts on which these matters turn are made out by probative materials, within this limited frame, these would be relevant considerations when deciding if the Tribunal proceedings in this application lack a proper purpose, practical effect or utility.
55. The factual basis on which these considerations turn is yet to be established by evidence. For this purpose, Mr O’Hara will be directed, within 14 days, to give to the Tribunal and the Respondent a statement and supporting materials addressing the matters set out in paragraphs 38 and 39. The Respondent will be given opportunity to respond any further materials Mr O’Hara provides within 7 days thereafter.
[47] ST13.5, folio 76.
[48] ST11, folio 66.

On 27 November 2023, Mr O’Hara lodged written submissions and supporting materials which establish:
(a)on 4 October 2022, Mr O’Hara purchased an annual subscription to Duolingo Plus from Google Play (Google Asia Pacific Pte) for $131.99;
(b)on 31 January 2023, Mr O’Hara purchased an annual subscription to Premium Sleep Tracking from App Store (Apple Pty Ltd) for $45.99;
(c)on 7 February 2023, Mr O’Hara purchased an annual gold subscription to Chronometer Software for $76.99; and
(d)on 4 March 2023, Mr O’Hara purchased Monash University FODMAP diet application for $12.99.
Submissions
In Mr O’Hara’s submission, inclusion of these subscriptions in the Rehabilitation Program was supported by the Workplace Rehabilitation Provider (Ms Scanlan, IPAR) engaged by the Department in draft rehabilitation programs prepared in September 2022 and August 2023. He asserts, further, that the inclusion of the subscriptions in the Rehabilitation Program was recommended by Dr Ryan.
Mr O’Hara contends there is a clear nexus between the subscriptions and his rehabilitation, in that the applications were obtained and used to enhance his prospects of redeployment into alternative employment. He argues, as rehabilitation authority in his case, the Department had power to approve the subscriptions in the Rehabilitation Program, and the possible applicability of other sections of the SRC Act, such as s 16 in respect of medical treatment expenses, is beside the point.
In his submission, the Tribunal should vary the decision under review to include the subscriptions set out in paragraph 38 (above) in the Rehabilitation Program and to make such directions as are required for the costs he incurred purchasing the subscriptions to be reimbursed to him in an appropriate manner.
In Comcare’s submission, Mr O’Hara has not produced evidence to explain why the purchased subscriptions should be included in the rehabilitation program rather than being claimed as medical treatment expenses under s 16 of the SR Act. Comcare asserts there is insufficient evidence to establish the purchased subscriptions should be included in the Rehabilitation Program.
In Comcare’s submission, there is no evidence linking the Duolingo Plus subscription to the goals of the rehabilitation program, and the available evidence does not support inclusion of the subscription in the program. Comcare alleges, without evaluative material to demonstrate that Duolingo is capable of equipping Mr O’Hara with Russian language skills at a level suitable for employment, it should not be included in the rehabilitation program. Comcare notes Duolingo does not lead to any formal language qualification and Mr O’Hara has not explained why it was necessary for him to purchase a Duolingo Plus subscription when the app can be accessed without charge.
Comcare asserts Dr Ryan did not refer to a FODMAP diet app in medical certificates he signed, and the chronometer and FODMAP apps appear to relate to Mr O’Hara’s irritable bowel syndrome. These apps, Comcare alleges, relate to Mr O’Hara’s diet and they are better understood as medical treatment of irritable bowel syndrome than rehabilitation.
Comcare contends Dr Ryan did not refer to a sleep monitoring app and there is no medical evidence Mr O’Hara requires a sleep monitoring app in relation to his PTSD. Comcare asserts no evidence has been provided to support Mr O’Hara’s assertion that the sleep app should be considered as rehabilitation and not as medical treatment. Without further medical evidence, Comcare argues there is no basis for the Tribunal to find that the sleep app ought to have been included in the rehabilitation program.
Consideration
The phrase ‘rehabilitation program’ is given a broad and inclusive meaning in s 4(1) the SRC Act:
rehabilitation program includes medical, dental, psychiatric and hospital services (whether on an in‑patient or out‑patient basis), physical training and exercise, physiotherapy, occupational therapy and vocational training.
On review, for the purposes of determining a rehabilitation program an injured employee is obligated to undertake under s 37(1) of the SRC Act, the Tribunal must make factual findings in respect of the matters set out in s 37(3) and determine the matter on the available evidence.
The matters set out in s 37(3) of the SRC Act are:
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.
These matters must be considered.
I note the written assessment under s 36(8) in respect of a suitable rehabilitation program for Mr O’Hara to undertake does not illuminate with any specificity reasons to include the particular subscriptions in the rehabilitation program under review.
Even though in this case the individual and collective costs of the subscriptions Mr O’Hara wants included in the rehabilitation program under review are small, the contents of the rehabilitation program cannot be determined on the basis of low cost and the views of the injured employee alone. The decision-maker must be satisfied it is reasonable and appropriate to include these items in the rehabilitation program. Satisfaction hinges on consideration of all relevant matters, including the matters set out in s 37(3) of the SRC Act, and relevant probative evidence.
With regard to the Duolingo Plus subscription, there is no evaluative evidence of the likely efficacy of the subscription Mr O’Hara purchased in a language training or rehabilitation context. Mr O’Hara’s assertion the Duolingo Plus language training will improve his employment prospects is not supported by other evidence. The general proposition that language training might assist Mr O’Hara’s employment prospects and his rehabilitation is not a sufficient reason to include the Duolingo Plus subscription in the rehabilitation program. More is required to establish a reasonable basis for doing so. There is no relevant probative evidence addressing this point. The extent to which, if at all, the Duolingo Plus subscription might improve Mr O’Hara’s employment prospects is unknown. There is also no evidence addressing the relative merits of alternatives to the subscription or any reduction in the future liability to pay compensation should it be included in the rehabilitation program.
Evidence of a vocational and rehabilitation assessment, linking the language competencies and qualifications and other benefits to Mr O’Hara which might be obtained under the annual Duolingo Plus subscription and any alternative language training course or program with vocational objectives, employment opportunities and the goals of the rehabilitation program, would enable the costs and benefits of the subscription to be weighed and alternatives considered. While Mr O’Hara has been agitating for inclusion of language training in his rehabilitation program for some time, over successive rehabilitation programs, and supportive recommendations appear to have been made by Ms Scanlan, the present evidence does not establish an assessment of this kind has been undertaken. The basis of Ms Scanlan’s recommendation[49] is not clear on the present evidence. In all likelihood, as the communications between Ms Scanlan and Mr O’Hara clearly reveal, the matters were raised by Mr O’Hara and Ms Scanlan attempted to obtain supporting material from Dr Ryan. Nonetheless, Dr Ryan did not recommend a language application subscription for Mr O’Hara.
[49] T4, folio 27.
Mr O’Hara’s attitude to including the Duolingo Plus subscription in the rehabilitation program is quite clear. Without relevant evidence, the likely psychological effect on him of not doing so is unknown, although I note Mr O’Hara has clearly expressed his negative views about such an eventuality. While Mr O’Hara’s disappointment and frustration might have a psychological element, on the present evidence I am unable to assess the psychological effect on him of not including the Duolingo Plus subscription in the rehabilitation program.
Considering all the evidence, I am not persuaded the Duolingo Plus subscription Mr O’Hara purchased can appropriately be included in the rehabilitation program under review. There is simply not sufficient relevant evidence on which to make findings in respect of the matters set out in s 37(3) of the SRC Act, without which a positive conclusion cannot be drawn on the question of inclusion.
With regard to the Health apps recommended by Dr Ryan and the health-related subscriptions Mr O’Hara purchased (set out in paragraph 38(b), (c) and (d) above), Comcare is wrong to assert Dr Ryan did not refer to a sleep monitoring app, when he plainly did.
The central question is whether the Health apps and the subscriptions Mr O’Hara purchased are for the purposes of rehabilitation or for the management of his ailments in a medical, psychological, psychiatric or dietetic context.
Dr Ryan’s medical certificates are not clear on this point. When one considers the purposes Dr Ryan set out for each Health app, his comments about review of the data captured is illuminating:
Continue use for 6−12
months. Review relevant
data captured in and by
the apps with GP,
psychologist and
psychiatrist at routine
appointments.[50]
[50] Dr Ryan’s medical certificate, 18 November 2022, page 2.
As can be seen, the doctor’s recommendation is for review of relevant data captured by the Health apps in routine treatment appointments with Mr O’Hara’s general practitioner, psychiatrist and psychologist. This strongly suggests Dr Ryan considered the Health apps in a treatment context. I am satisfied it is probable the Health apps were recommended by Dr Ryan for the purposes of managing the treatment of Mr O’Hara’s relevant ailments for a 6 to 12 month period.
I accept the effective management of Mr O’Hara’s ailments and related symptoms is a relevant matter to consider in a rehabilitation context. Effective management of his ailments may well assist his rehabilitation under the goals of the rehabilitation program under review. But it does not follow the Health apps and the FODMAP diet application can or should be included in the rehabilitation program without consideration of the matters set out in s 37(3) and without evidence linking them to the elements and goals of the program.
On the present evidence, despite Mr O’Hara’s assertions, the role of the Health apps and subscriptions he purchased in the rehabilitation program under review, and their purposes in Mr O’Hara’s rehabilitation more generally, are not clearly and specifically made out. No compelling case has been raised or made out for their inclusion in the rehabilitation program under review.
The communications between Ms Scanlan and Mr O’Hara on 5 and 17 October 2022, to which I have already referred, do not explain the nexus between the application subscriptions and the rehabilitation program goals. Mr O’Hara’s interest in using the applications is clear enough, but the rehabilitation benefits he might obtain from doing so, and the impact of this on future liabilities have not been identified. There is no evidence the relative merits of any alternatives and any related reduction in future liability to pay compensation were raised or considered.
The psychological effect on Mr O’Hara of not including the Health apps and subscriptions in the rehabilitation program is unknown, although the matters raised in his related communications with the rehabilitation authority and in these proceedings indicate a level of frustration and dissatisfaction. Mr O’Hara has clearly and repeatedly expressed concern about the practical efficacy of rehabilitation programs determined for him in the context of his strong desire to return to full employment.
It should be understood rehabilitation is one element of the legislative scheme the SRC Act provides for injured employees. In this context, under the SRC Act and as a matter of practical reality, rehabilitation is not a cure for injury, or for impairment resulting from an injury: the purpose of rehabilitation is not to make the injured employee well again, rather it is to rehabilitate the injured person into suitable employment as soon as possible after an injury. In this context, several years after being injured and without suitable employment despite repeated rehabilitation programs, Mr O’Hara’s frustration can readily be understood. Nevertheless, what can be done by way of effective and practical rehabilitation in his present circumstances, well after expiration of the rehabilitation program under review, is not for me to decide in these proceedings.
Considering the whole of the evidence, I am satisfied the Health app subscriptions and the FODMAP diet application Mr O’Hara purchased are for the purposes of managing and monitoring the progress of his medical conditions in a treatment context. There is not sufficient evidence to determine the contribution and purposes of the Health app subscriptions and the FODMAP diet application in assisting Mr O’Hara’s rehabilitation in the context of the rehabilitation program under review. Consequently, on the available evidence, no positive decision can be made to include them in that program.
It is not for me to determine if these items should be dealt with under s 16 of the SRC Act. Thus far, no claim for such compensation has been made or determined.
I note Mr O’Hara has not made a claim for compensation under s 39 of the SRC Act in respect of the application subscriptions at the heart of this dispute, and I make no comment about the possible applicability of the provision should he do so.
In conclusion, I am satisfied the available evidence does not support inclusion of the Duolingo Plus application subscription and the Health apps and FODMAP diet application subscriptions in the rehabilitation program under review.
I note in closing Comcare’s application for dismissal of this application under s 42B of the AAT Act. It will be clear by now there is a substantive issue to be decided in the review. The lack of relevant probative evidence underlies Comcare’s submission. In some cases, this may be firm ground on which to apply for dismissal of an application without any reasonable prospect of success under s 42B(1)(b). Some caution is required, however. In this case, I was not satisfied Mr O’Hara’s application lacked any reasonable prospect of success and there was a sufficient basis to proceed to determine the application in a manner which is procedurally fair under s 43 of the AAT Act. Even though the decision is adverse to Mr O’Hara, the decision is arrived at only after close examination of the available materials and the submissions of the parties.
Decision
The decision under review is affirmed.

76.

77. I certify that the preceding 75 (seventy-five) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member.

........................[SGD]...................................
Associate
Dated: 13 March 2024

Date of hearing:
7 February 2024

For the Applicant:

For the Respondent:

Mr Damon O’Hara

Mr Andrew Dillon, Australian Government Solicitor

[2024] AATA 422

13 March 2024

Key Legal Topics

Areas of Law

Administrative Law

Employment Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Appeal