O’Hara and Comcare (Compensation) - [2023] AATA 3814

O’Hara and Comcare (Compensation) [2023] AATA 3814 (15 November 2023)
Division:GENERAL DIVISION

File Number(s): 2023/0577
2023/4063
2023/4064
2023/8030

Re:Damon O’Hara
APPLICANT

ComcareAnd
RESPONDENT

INTERLOCUTORY DECISION
Tribunal:Mr S. Webb, Member
Date:15 November 2023
Place:Canberra

Application 2023/0577
The Tribunal directs:
1.within 14 days, the Applicant must give to the Tribunal and the Respondent:
(a)a statement with supporting materials addressing his alleged purchase of annual smartphone and language training software subscriptions for rehabilitation purposes; and
(b)written submissions; and

2.within 7 days thereafter, the Respondent must give to the Tribunal and the Applicant written submissions in reply.

Each party has liberty to apply to be further heard, orally.

Application 2023/4063
Application for grant of extension of time is refused.

Application 2023/4064
Application dismissed for want of jurisdiction.

Application 2023/8030
Application listed for an expedited directions hearing.

………………[sgd]…………………
Mr S. Webb, Member
Catchwords
PRACTICE & PROCEDURE – compensation for injury – determination Applicant should undertake a rehabilitation program – program ended in the course of proceedings – subsequent rehabilitation determinations – application for dismissal – review of past rehabilitation program – alleged purchase of rehabilitation items – potential for reimbursement of costs incurred – not presently established proceedings lack utility – application for dismissal held over – directions issued
PRACTICE AND PROCEDURE – application for extension of time to lodge application for review – decision not reviewable by the Tribunal – application refused
PRACTICE AND PROCEDURE – application for review of deemed decision of rehabilitation authority – determination Applicant should undertake a rehabilitation program – no request for reconsideration by rehabilitation authority – no deemed reviewable decision – no jurisdiction – application dismissed
Legislation
Administrative Appeals Tribunal Act 1975, ss 3, 25, 33, 38AA, 39, 41, 42A, 42B, 43
Safety, Rehabilitation and Compensation Act 1988, ss 4, 16, 34, 37, 38, 39, 40, 60, 62, 64
Cases
Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307
Comcare v Meng Chang [1996] FCA 927
Cook and Comcare [2016] AATA 371
Department of Defence v Fox [1997] FCA 3
Ferdinands v Registrar Cridland [2021] FCA 592
Filsell and Comcare [2009] AATA 90
Fogarty and Comcare [2007] AATA 1299
Fogarty and Comcare [2007] AATA 2002
Griffiths and Telstra Corporation Limited [2013] AATA 695
Scott v Judicial Registrar Ditton [2023] FCA 947
Prior v South West Aboriginal Land Corporation [2020] FCA 808
McAullay and Comcare [2014] AATA 163
MYXX and Comcare [2019] AATA 40
Secretary, Department of Social Security v Alvaro (1994) 50 FCR 213
Walton and Australian Postal Corporation [2018] AATA 4585
Williams and Australian Electoral Commission & Anor [1995] AATA 160
Singh and Administrative Appeals Tribunal [2014] AATA 701
Mr S. Webb, Member
15 November 2023

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 serial rehabilitation programs. The effectiveness and utility of the rehabilitation programs determined for Mr O’Hara…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] AATA 3814
Decision Date: 15 November 2023

CaseChat Overview and Summary

This matter concerned applications for review before the Administrative Appeals Tribunal (AAT) by Mr O’Hara against Comcare. Mr O’Hara had accepted compensation claims for post-traumatic stress disorder and irritable bowel syndrome. The dispute arose from determinations made regarding Mr O’Hara's rehabilitation programs, including an initial program commenced in April 2022, an altered program in July 2022, and a further program determined in September 2022, which was expected to conclude in April 2023. Interlocutory issues were raised in relation to these applications.

The primary legal issues before the Tribunal were whether it had jurisdiction to review a deemed decision of the rehabilitation authority, specifically concerning a failure or refusal to reconsider a rehabilitation program determination made on 26 September 2022. Mr O’Hara argued that his request for reconsideration constituted a deemed decision under section 3(3) and section 25(5) of the Administrative Appeals Tribunal Act 1975 (AAT Act), making it reviewable. Additionally, the Tribunal considered an application for an extension of time to lodge an application for review, where the decision in question was not considered reviewable by the Tribunal.

The Tribunal determined that Mr O’Hara's application for review of the deemed decision failed for want of jurisdiction. It found that the document Mr O’Hara relied upon as a request for reconsideration was addressed to specific officers and contained clear requests to each. However, the Tribunal concluded that these requests did not constitute a formal request for reconsideration of the rehabilitation program determination as contemplated by the relevant legislation, meaning no reviewable decision had been made by the rehabilitation authority. Consequently, the Tribunal found no jurisdiction to entertain the review.

In light of the lack of jurisdiction for the substantive review, the Tribunal refused the application for an extension of time to lodge the application for review. The Tribunal reasoned that it was not reasonable to grant additional time under section 29(7) of the AAT Act when the underlying application lacked a jurisdictional basis.

Orders

Orders of the court

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Background

Background to the litigation

Presently, he has lodged 4 applications for review of decisions by the Tribunal. There are interlocutory issues in each application. It is convenient to address these issues serially in a single decision as they arise from the following factual background. Facts There is no dispute Mr O’Hara has accepted compensation claims in respect of post-traumatic stress disorder (PTSD) and irritable bowel syndrome (IBS) under the Safety, Rehabilitation and Compensation Act 1988 (SRC Act).[1] [1] 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…[2][2] ST4, folio 19. On 30 March 2022, a rehabilitation assessor, Darcy Scalon, produced a Compensation Rehabilitation Assessment Report[3] in which she found Mr O’Hara was capable of undertaking a rehabilitation program.[4] [3] ST5.[4] Ibid, folio 29. A rehabilitation program was determined for Mr O’Hara, which commenced on 12 April 2022, and it was expected to be completed by 1 October 2022.[5][5] ST6. On 22 July 2022, the rehabilitation program was altered.[6] The expected end date of the program remained unchanged.[6] ST8. Subsequently, a further rehabilitation program was determined for Mr O’Hara. The rehabilitation program commenced on 26 September 2022, the day on which it was signed by the delegate,[7] Karen Baldwin, and it was expected to end on 1 April 2023.[8] I note in passing, 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:… d) … 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 circumstances change and will be in consultation with all relevant parties.e) … The final goal will be modified if/when required based on progress and medical advice/capacity.…h) … 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.[9][7] Ibid, folio 43.[8] Ibid, folio 34.[9] Ibid, folio 45. I also note, on 28 June 2023, Ms Baldwin referred to the 26 September 2022 rehabilitation program as a ‘program alteration’.[10] The basis of this description is not clear on the present materials.[10] ST13, folio 71. The ‘interim goal’ and the ‘final goal’ were specified.[11] The ‘final goal’ was expressed in the following terms: “Employer and WRP will arrange work in another suitable location”.[12] The ‘Expected final goal commencement date’ was 1 April 2023.[13] 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.[14] The Rehabilitation Case Manager’s responsibilities in respect of ‘Communication’, ‘Engagement with workplace during redeployment’ and ‘Documentation’ were also set out in tabular form.[15] The Workplace Rehabilitation Provider’s responsibilities were also tabulated with specific budget allocations, namely:Medical case conference reviews … $1,587.84Communication … $4,962.00Reporting … $793.92Job seeking/Vocational counselling … $1,190.88Travel … $1190.88[16][11] T5, folio 35.[12] Ibid.[13] Ibid.[14] Ibid, folios 35-38.[15] Ibid, folios 39-40.[16] Ibid, folios 41-42.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

That being so, the application would fail for want of jurisdiction under s 42A(4) of the AAT Act and, in those circumstances, it is not reasonable to grant additional time under s 29(7) of the AAT Act.Decision The application for an extension of time is refused.Application 2023/4064 This is for review of a failure or refusal by the rehabilitation authority to reconsider the rehabilitation program determination on 26 September 2022. Mr O’Hara asserts, under s 38(4) of the SRC Act, he requested the rehabilitation authority to reconsider the 26 September 2022 determination. He argues the failure of the rehabilitation authority to reconsider the determination is a failure or a refusal to make a decision, which is within the meaning of decision under s 3(3) of the AAT Act. The decision is reviewable by the Tribunal, so the argument goes, as s 25(5) of the AAT Act provides that the failure by a person to do an act or thing within the period prescribed is deemed to constitute the making of a decision by that person. The Respondent asserts Mr O’Hara has not identified any reviewable decision. Subsections 3(3) and 25(5) of the AAT Act are in the following terms: (3) Unless the contrary intention appears, a reference in this Act to a decision includes a reference to: (a) making, suspending, revoking or refusing to make an order or determination; (b) giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission; (c) issuing, suspending, revoking or refusing to issue a licence, authority or other instrument; (d) imposing a condition or restriction; (e) making a declaration, demand or requirement; (f) retaining, or refusing to deliver up, an article; or (g) doing or refusing to do any other act or thing.(5) For the purposes of an enactment that makes provision in accordance with this section for the making of applications to the Tribunal for review of decisions, a failure by a person to do an act or thing within the period prescribed by that enactment, or by another enactment having effect under that enactment, as the period within which that person is required or permitted to do that act or thing shall be deemed to constitute the making of a decision by that person at the expiration of that period not to do that act or thing. There are two difficulties with Mr O’Hara’s submissions on this issue. Firstly, the 26 October 2022 document in which he asserts to have requested reconsideration of the 26 September 2022 determination is a letter addressed to the Principal Officer of the Rehabilitation Authority and the Reconsiderations Officer of Comcare. Mr O’Hara makes clear and precise requests to each addressee in paragraphs 11 and 12 of the document. He requests Comcare to reconsider whether this s 37 determination was made appropriately and he requests the rehabilitation authority to consider whether the current delegate has the appropriate experience, training and aptitude to exercise the delegation.[57][57] T8, folio 53.

Ratio Decidendi

Legal Principle Established

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