Peek and Comcare
[2007] AATA 1462
•25 June 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1462
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2005/1500
GENERAL ADMINISTRATIVE DIVISION ) Re GREGORY PEEK Applicant
And
COMCARE
Respondent
DECISION
Tribunal Dr John Campbell, Member Date of hearing 11 April 2007
Date of decision 25 June 2007
PlaceSydney
Decision The reviewable decision is affirmed. ..................[sgd]........................
Dr John Campbell
Member
CATCHWORDS
WORKER’S COMPENSATION - whether decision maker was delegated to make decision on behalf of the rehabilitation authority - whether delegate exercised power in bad faith - whether employer had power to make a decision about rehabilitation - whether incapacitated for work if duties are restricted - whether Applicant undertook a rehabilitation program pursuant to the Act - whether the limitations imposed on employee exceeded the powers conferred on the Respondent - whether the employer could invoke other powers against the employee under the Act, and terms and conditions of the Applicant’s employment - decision under review affirmed.
Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307
Secretary, Department of Social Security v Alvaro (1994) 34 ALD 72
Mika Engineering Holdings Pty Ltd and Anor and Commissioner of Taxation (2006) 92 ALD 688
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
Sections 4, 14, 36, 37, 38, 40, 41A, 57 Safety, Compensation and Rehabilitation Act 1988
Section 16 Occupational Health and Safety (Commonwealth Employment) Act 1991 (now Occupational Health and Safety Act 1991).
Sections 55K, 55M, 55ZA Judiciary Act 1903
Sections 26, 43(1) Administrative Appeals Tribunal Act 1975
REASONS FOR DECISION
25 June 2007 Dr John Campbell, Member Summary
1. Mr Gregory Peek is a solicitor who has been employed for many years by the Australian Government Solicitor (“AGS”). In October 2004 he became unwell, took time off work, and undertook treatment. He claimed compensation. On 13 April 2005, Comcare accepted liability under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (“the SRC Act”) for agoraphobia with panic attacks.
2. These proceedings concern a written request made to Mr Peek on 5 May 2005 by Ms Pitt, an employee of AGS, to attend a psychiatrist for a medical assessment of his capability of undertaking a rehabilitation program. That decision was purportedly made pursuant to s 36(3) of the SRC Act which provides:
The rehabilitation authority may require the employee to undergo an examination by the person or panel of persons making the assessment.
3. Mr Peek seeks to have the reviewable decision made on 21 September 2005 by Comcare affirming that decision set aside, and a direction made to “the respondent to permit Mr Peek to return to work forthwith”.
4. In his Application for Review, Mr Peek also referred to “decisions of AGS to take sanctions against the applicant for refusing to attend the assessment in excess of those provided by sub-section 36(4) of the [SRC Act].” As well as attaching copies of Ms Pitt’s decision of 5 May 2005, and Comcare’s decision of 21 September 2005, Mr Peek attached a letter dated 21 October 2005 from Ms Pitt which dealt with his “miscellaneous leave with pay” until 31 January 2006.
5. In his Statement of Facts and Contentions, Mr Peek also sought a direction that the “respondent’s delegate”, AGS, repay amounts of recreation and personal leave applied for and taken between July 2005 and November 2005. The Tribunal did not understand him to press for that direction at the hearing. In any event, it is the Tribunal’s opinion that it has no power to make an order against AGS. The matter before the Tribunal concerns a decision made by Comcare.
6. For the reasons set out below, the reviewable decision is affirmed.
Issues
7. This case dealt with legal and factual questions relating to the reviewable decision.
8. Mr Peek relied on a number of legal arguments:
i.Ms Pitt was not delegated to make a decision on behalf of the respondent.
ii.Ms Pitt exercised the power in bad faith.
iii.AGS had no power to make the decision about rehabilitation because such power only exists while a person is incapacitated. Mr Peek’s incapacity ended on 17 January 2005 when Dr Pickering, his treating psychiatrist, completed a certificate. AGS made no decision while he was incapacitated.
iv.Mr Peek had undertaken a rehabilitation program within the meaning of s 4 of the SRC Act with Dr Pickering before January 2005 and his right to work under Part III of the SRC Act was invoked as of 17 January 2005 when his incapacity for work ceased. AGS was obliged to permit him to return to work then and remains so obliged (s 40 of the SRC Act).
v.The power under s 38(4) is broad enough for the Tribunal to grant the relief sought. Section 40 is relevant to that consideration. The statutory regime of ss 36, 37, 38 and 40 is the only mechanism that provides for a person to return to work after being “on comp”. He is being excluded from returning to work by these provisions.
vi.The “punitive sanctions” imposed on Mr Peek exceed the powers conferred on the “respondent” by subsection 36(4).
vii.AGS could not invoke other powers against Mr Peek given the terms of the SRC Act, and the terms and conditions of Mr Peek’s employment.
viii.Further purported decisions made by Ms Pitt on 4 May 2006 are invalid.
9. The factual matters are:
i.Was Mr Peek fit to return to work on 17 January 2005 or 5 May 2005 when the primary decision was made? That is dealt with at the same time as the third legal issue.
ii.Was Ms Pitt’s decision contrary to the medical and factual evidence?
10. Mr Kelly, counsel for Comcare, argued that these proceedings were frivolous and vexatious. The Tribunal felt it preferable to consider Mr Peek’s submissions on issues set out above before considering this argument. Given the Tribunal’s findings on those submissions, it is unnecessary to address that argument.
Background
11. In order to understand Mr Peek’s arguments it is necessary to refer to the terms of his application for review and parts of Ms Pitt’s letter of 5 May 2005.
12. In her letter of 5 May 2005, Ms Pitt states that Mr Peek had been asked for his written comments on three actions that AGS was considering taking in respect of him, and his response was that he would take court action. Ms Pitt noted that he had not accepted her offer for a face to face discussion with her and the Director of Human Resources in AGS. The letter then states:
Against that background, and as the delegate of the CEO of AGS, I now formally issue you with the following directions and requirement.
I direct you to attend for a medical assessment by Dr Julian Parmegiani psychiatrist, at 10.00am on Tuesday, 31 May 2005 at his rooms on … in Sydney.
Under subsection 36(3) of the SRC Act, I require you to attend Dr Julian Parmegiani, psychiatrist, at 10.00am on Tuesday, 31 May 2005 at his rooms in Sydney for the additional purpose of Dr Parmegiani assessing your capacity to undertake a rehabilitation program within the meaning of the SRC Act.
For the time being, and unless otherwise notified in writing, I direct you not to attend for work at AGS. This direction will be reviewed by me within 3 full working days after receipt of Dr Parmegiani’s written assessment of your fitness for duty. I emphasise that this direction will only remain in place for so long as is reasonably necessary to enable AGS to consider Dr Parmegiani’s report and form a view as to your fitness to return to work. As previously advised, I would consult you in relation to any issues arising from Dr Parmegiani’s report.
13. Ms Pitt states that the legal basis of the first and third directions is the common law rights of an employer, which she specifies. She also refers to the AGS’s duties under s 16 of the Occupational Health and Safety (Commonwealth Employment) Act 1991 (as it was then called). She specifies that the legal basis of the requirement to attend for an assessment of his capability to undertake a rehabilitation program is s 36 of the SRC Act. She also specifies the legal consequences of failing to comply with the directions, and refers to s 36(4) in relation to a failure to undergo an examination in accordance with a requirement under s 36(3).
14. The letter went on to deal with a proposal to continue Mr Peek’s miscellaneous leave with pay, subject to a condition. He was advised to contact a member of AGS’s payroll team for the re-crediting of his personal leave “now that your compensation claim has been accepted”.
15. Mr Peek referred specifically to s 38(2) of the SRC Act as the basis of his application for review to Comcare on 11 May 2005. Section 38(2) provides that an employee in respect of whom a determination under s 36 is made by a rehabilitation authority may, by notice in writing given to Comcare, request Comcare to review the determination.
Consideration
Delegation
16. There is in evidence a written delegation pursuant to s 41A of the SRC Act from the Chief Executive Officer (the CEO) of AGS to Ms Pitt dated 5 May 2005 (PT 54 p 511). There is also a delegation from the CEO to Ms Pitt of his powers pursuant to s 55ZA of the Judiciary Act 1903 “in relation to Greg Peek”.
17. The Tribunal agrees with Mr Peek that Ms Pitt was not delegated to make a decision on behalf of Comcare. The Tribunal infers that Mr Peek considered, incorrectly, that it was Comcare that should have made the decision on 5 May 2005. It is the “rehabilitation authority” which is empowered to make the decision under s 36(1) and (3) of the Act.
18. Section 36(1) provides:
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.
19. Section 36(2) specifies who shall make the assessment, including a medical practitioner. In each case, the person is “nominated by the rehabilitation authority”. Section 36(3), as set out above, provides that the rehabilitation authority may require the employee to undergo an examination by a person or panel making the assessment.
20. Section 37 is also relevant. It provides that a rehabilitation authority may determine that “an employee who has suffered an injury resulting in an incapacity for work or an impairment should undertake a rehabilitation program” and make arrangements with an approved program provider for the provision of that program.
21. The Tribunal agrees with the analysis of the legislation undertaken by Mr Kelly, counsel for Comcare, that the CEO of AGS was the “rehabilitation authority” as defined in s 4(1)(c) of the SRC Act, being the principal officer of the Commonwealth authority in which the employee is employed.
22. In summary, AGS is established by s 55J of the Judiciary Act 1903 to provide legal and related services to the Commonwealth and others (s 55K), and is a body corporate (s 55M). It is a “Commonwealth authority” within the definition in s 4(a) of that definition in the SRC Act, and it is not relevantly an exempt authority or licensed under the SRC Act.
23. Comcare becomes involved when an employee of AGS, here Mr Peek, requests pursuant to s 38 of the SRC Act, a review of the determination made under s 36.
24. It follows that Ms Pitt was authorised to make a decision pursuant to s 36 of the SRC Act by the delegation from the CEO of AGS, who was relevantly the rehabilitation authority.
25. It is important to bear in mind that Comcare is the respondent in this case, not AGS, and that the reviewable decision is Comcare’s decision.
Did Ms Pitt exercise the power in bad faith?
26. Clearly, Mr Peek felt he was not being dealt with fairly by AGS management. One summary of his feelings is set out in his letter to Comcare seeking review of Ms Pitt’s decision. Mr Peek’s submission as the Tribunal understands it was that Ms Pitt’s decision was invalidly made. However, the authorities make it clear that the Tribunal has jurisdiction to undertake a review so long as the preceding decision-maker had made what purported to be a decision in the exercise of powers conferred by the relevant legislation (Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307, Secretary, Department of Social Security v Alvaro (1994) 34 ALD 72; 19 AAR 460, Mika Engineering Holdings Pty Ltd and Anor and Commissioner of Taxation [2006] AATA 634).
27. Ms Pitt made a decision purportedly pursuant to s 36(3). Mr Peek sought review of that decision from Comcare pursuant to s 38 of the SRC Act, and now seeks a review of Comcare’s decision in this Tribunal. It is not necessary or appropriate for this submission to be considered further. The matter is properly before theTribunal, which must make the correct or preferable decision (Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577).
Did AGS have power to make a decision about rehabilitation?
28. Mr Peek’s argument that AGS had no power to make the decision about rehabilitation involves a legal question and a finding of fact. The legal argument is that s 36 requires that a rehabilitation authority exercise the power under s 36(3) only while a person is incapacitated for work. That is a matter of statutory interpretation. Secondly, he argues that as a matter of fact, he was not incapacitated as of 17 January 2005.
29. It is not necessary to consider the legal question, because on the evidence, the Tribunal finds that Mr Peek was incapacitated for work as of 17 January and on 5 May 2005. Clearly, Mr Peek had suffered an injury which resulted in incapacity for work. There were various medical certificates to that effect from October 2004. He made his claim for compensation stamped by Comcare on 20 October 2004. Mr Peek’s case that he was not incapacitated for work as of 17 January 2005 relied on Dr Pickering’s medical certificate dated 5 January 2005.
30. Dr Pickering ticked the box “Final certificate”. His diagnosis was “panic disorder with agoraphobia & major depressive disorder” which was caused by “workplace stress”. The doctor noted as pre-existing or contributing factors “Predisposition (constitutional to panic attacks)”. In relation to treatment or restriction, Dr Pickering wrote “Ongoing paroxedine. Avoidance of threatening work situations likely to cause excessive anxiety is necessary.” He certified Mr Peek as unfit to work from 5 to 16 January 2005, and fit to return to pre-injury duties from 17 January 2005.
31. Ms Pitt wrote to Mr Peek on 10 January 2005. She noted that he had advised that he was fit to return to work on 17 January 2005, and had sent a copy of Dr Pickering’s certificate to AGS. She said that “Given the length and circumstances of your absence from work to date, it is important that AGS provides you with any appropriate assistance when you return to work.” She proceeded to advise Mr Peek that in accordance with AGS’s usual procedure, she had arranged for a health assessment on 13 January 2005 by an Health Services Australia doctor. She also stated that she had asked the doctor to provide the health assessment as a matter of urgency “so that we can review your situation and discuss it with you prior to your return to work.”
32. On 12 January 2005 Mr Peek replied to Ms Pitt, advising that he did not wish to accept the invitation to undergo the health assessment. He stated that Dr Pickering’s certificate “stipulates relevant treatment (and restrictions) as being continuing medication, and ‘avoidance of threatening situations likely to cause excessive anxiety’. I have also been verbally advised by Dr Pickering that ongoing consultations will be necessary, the first of which should occur in the first week of February 2005.” He further said that he was fit for his pre-injury duties “subject to the limitations as specified.” He offered to try to make an earlier appointment with Dr Pickering. He did not wish to see practitioners not involved in his treatment, referring to “having been severely let down, if not directly harmed, by the AGS health management processes”.
33. Ms Pitt responded by email confirming the appointment and the need for it, advising that cab charge vouchers would be couriered to Mr Peek, and repeating that the HSA report needed to be considered and suitable arrangements made in the workplace prior to his return to work.
34. On 13 January 2005 Mr Peek responded, confirming he would not attend the appointment, and raising various matters including his relations with AGS, his status from 17 January 2005, and pay matters.
35. On 18 January 20005, Ms Pitt wrote to Doctor Pickering, with Mr Peek’s consent, seeking further information. Doctor Pickering responded on 8 February 2005. He set out in detail five requirements that needed to be addressed to provide a safe working environment for Mr Peek, as stipulated by Mr Peek, and which he endorsed. In summary they were that his managers not deliberately overload him, that he receive support rather than criticism from his supervisor in relation to certain communications with litigants, the provision of protection against vexatious litigants, the fair distribution of matters involving certain types of litigants, and that he receive reasonable additional support to minimise bureaucratic difficulties.
36. During this period, Mr Peek’s claim for compensation was before Comcare. Doctor Pickering sent a different report to Comcare also dated 8 February 2005.
37. Ms Pitt wrote to Mr Peek on 17 March 2005. She had considered Doctor Pickering’s report and other medical opinions and she continued to have concerns about his fitness to return to work and the appropriate arrangements that AGS would need to have in place. She had made an appointment for Mr Peek to see Doctor Parmegiani, psychiatrist, on 6 April 2005 and asked Mr Peek if he would agree to see that doctor. She also noted that his miscellaneous leave with pay would cease on 18 March 2005, however, she had extended it until 24 March 2005 in order to allow Mr Peek time to consider the matters she had raised.
38. Mr Peek responded that he had an accrued right to return to work on 17 January 2005 and her actions “in denying me permission to return to work since are illegal and mala fides”. He set out his position on various matters, including seeking information about the legal basis for any direction that might be made denying him permission to return to work, that he would not consent to AGS obtaining “independent medical advice” until Comcare had determined his worker’s compensation claim, and seeking information about his employment status from 29 March 2005.
39. Correspondence continued between the two. In his e-mail of 30 March 2005 Mr Peek stated that he would take court action to secure his return to work if he had not been permitted to do so by 18 April 2005.
40. On 31 March Ms Pitt postponed the appointment with Doctor Parmigiani until 31 May 2005, and advised Mr Peek that his leave with pay had been extended to 15 April 2005. On 11 April Ms Pitt confirmed the 31 May appointment with Doctor Parmegiani, and set out proposed directions to attend the medical assessment and not to attend work until he had done so and AGS had considered the assessment. She set out the legal basis for those proposed directions and asked him for his comments by close of business on 18 April 2005. His leave with pay was extended until 22 April.
41. Mr Peek replied on 15 April. He had received notice that Comcare had determined his claim favourably and in light of that extended his return to work deadline until 26 April 2005.
42. Ms Pitt replied on 21 April. Her position was the same as in her letter of 11 April, but she included a new matter AGS was considering, which was to ask Doctor Parmegiani to assess Mr Peek’s capability to undertake a rehabilitation program, relying on s 36 of the SRC Act. She sought his comments.
43. Doctor Pickering provided a Medical Review Certificate dated 27 April 2005 in which he certified Mr Peek fit to return to work full-time, stated that the treatment description was “medication, monthly reviews”, and specifying 18 sessions, to be finalised in November 2006.
44. On 2 May 2005 Mr Peek sought a review of Comcare’s decision to accept liability in respect of the time off work. He also claimed additional medical expenses. In relation to return to work and rehabilitation, he said that Comcare had not considered those matters and had not invoked s 57 of the SRC Act to undertake an independent medical examination.
45. The primary decision which gave rise to these proceedings was made on 5 May 2005, and is set out earlier in this decision.
46. A further statement dated 2 December 2005 from Doctor Pickering was before us. He repeated that he had certified Mr Peek fit to return to his pre-injury duties from 17 January 2005 subject to the conditions “continuing paroxetine, avoidance of threatening situations likely to cause excessive anxiety is necessary”. He stated that Mr Peek had attended counselling with him on a monthly basis since January 2005 and continued paroxetine, and that Comcare had retrospectively approved and funded those arrangements as an “approved treatment program”. He stated that he had confirmed Mr Peek’s fitness to return to duties on 10 July 2005 in an affidavit in Federal Court proceedings. He considered that Mr Peek “had completed a program of “psychiatric” services by 17 January 2005, such that he was fit to return to active duties. There is no medical basis on which any other form of rehabilitation program could be considered appropriate, especially as at 5 May 2005.”
47. The Tribunal also had in evidence a report from Doctor Smith, consultant psychiatrist, dated 10 April 2006, which was prepared at the request of AGS. He diagnosed Generalised Anxiety disorder and Panic Disorder which was not solely caused by the work environment, and that Mr Peek had been prone towards anxiety sensitivity and has undergone an exaggerated psychological reaction for what he has perceived as threatening work situations. He thought cognitive behavioural therapy might be helpful. He considered mediation essential between Mr Peek and his superiors in order to effectively reintegrate him into the work setting. He referred to the ongoing litigious activity and marked distrust on Mr Peek’s part towards his superiors.
48. By that time, Mr Peek had commenced litigation in the Australian Industrial Relations Commission, the Federal Court and this Tribunal.
49. The Tribunal considers that Doctor Pickering’s medical certificate dated 5 January 2005 and report of 8 February 2005 established that Mr Peek could return to work subject to conditions. Doctor Pickering’s report to Comcare of 8 February 2005 is to similar effect but in some respects is expressed more simply.
50. Sub-section 4(9) of the SRC Act provides a definition for incapacity for work:
A reference in this Act to an incapacity for work is a reference to an incapacity suffered by an employee as a result of an injury, being:
(a) an incapacity to engage in any work; or
(b) an incapacity to engage in work at the same level at which he or she was engaged by the Commonwealth or a licensed corporation in that work or any other work immediately before the injury happened.
51. The Tribunal finds that as of 17 January 2005 Mr Peek was incapacitated for work within the meaning of s 4(9) of the SRC Act. He could not do the same level of work as he had previously done. He required a management regime that would provide what he perceived as a safe working environment, that is, that would not expose him to the psychosocial stressors that had been a significant and substantial cause of the disorder. Later reports from Doctor Pickering which are unconditional do not cause the Tribunal to change that opinion. The Tribunal infers that Doctor Pickering was supporting Mr Peek’s assertion thereafter that he was not incapacitated. The Tribunal considers that Doctor Smith’s report supports its conclusion.
Had Mr Peek undertaken a rehabilitation program within the meaning of s 4 of the SRC Act with Doctor Pickering before 17 January 2005 which meant that AGS was obliged to allow him to return to work on that day?
52. Mr Peek’s argument that he had undertaken a rehabilitation program with Doctor Pickering before 17 January 2005 such that AGS was obliged to allow him to return to work on that day is misconceived. Whilst the treatment Mr Peek had from Doctor Pickering before 17 January 2005 may fall within the definition of “rehabilitation program” in s 4 of the Act, it was not a rehabilitation program undertaken pursuant to Part III of the SRC Act. That Part provides that the rehabilitation authority, here AGS, may arrange assessment of an employee’s capability to undertake rehabilitation program (s 36(1)), require the employee to undergo an examination for that assessment (s 36(3)) and may make a determination that an employee undertake such a program which must be with an approved provider (s 37). The treatment Mr Peek had from Doctor Pickering was not at the direction of or arranged by AGS. Further, there is no evidence that Doctor Pickering was an approved provider.
53. Section s 40 applies to a rehabilitation program undertaken or completed pursuant to Part III of the Act. In that circumstance, the employer is required “to take all reasonable steps to provide the employee with suitable employment or to assist the employee to find such employment.” For the reasons already stated Doctor Pickering’s treatment was not a rehabilitation program, and accordingly s 40 does not apply. There is no other relevant provision that would oblige AGS to allow Mr Peek to return to work on 17 January 2005.
Is the power pursuant to s 38(4) broad enough for the Tribunal to grant the relief Mr Peek seeks?
54. Sub-section 38(4) of the SRC Act provides that:
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.
55. As the Tribunal understands Mr Peek’s submission, he asked the Tribunal to set aside the reviewable decision and direct “the respondent to permit Mr Peek to return to work forthwith.”
56. The principal difficulties with this submission are that AGS, Mr Peek’s employer, is not a party to these proceedings, and the Tribunal was not referred to any powers that Comcare has to direct AGS to permit Mr Peek to return to work. The Tribunal sits in the shoes of Comcare as the decision-maker, and only has the powers Comcare has. Questions of common law rights and obligations under a contract of employment are not within the Tribunal’s jurisdiction. The Tribunal does not consider that s 38(4) provides a power to Comcare such that the Tribunal could make the decision Mr Peek seeks. Relevantly, the Tribunal’s powers are set out in s 43(1) of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”). Section 43 does not confer such a power on the Tribunal.
Do the punitive sanctions imposed on Mr Peek exceed the powers conferred on the “respondent” by s 36(4) of the SRC Act?
57. Section 36(4) of the SRC Act provides that:
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.
58. As the Tribunal understands Mr Peek’s submission, the “punitive sanctions” he refers to are the directions given by Ms Pitt of AGS on 5 May 2005 that he attend a medical assessment, that he was required to attend an assessment under s 36(3) of the SRC Act, and that he “not to attend for work at AGS” indefinitely. As emphasised earlier, Comcare is the respondent in these proceedings, not AGS. This submission is directed to the actions of AGS. As has been made clear earlier, the Tribunal only has jurisdiction to review Comcare’s decision in relation to the s 36(3) issue, and questions of mala fides or other matters going to the validity of Ms Pitt’s decision are not relevant to its consideration.
59. The other two directions were explicitly made on the basis of the common law, which is not a matter within the Tribunal’s jurisdiction. In any event, there has been no exercise of power under s 36(4). None of the rights referred to in s 36(4) have been suspended. These proceedings have not been suspended. There was no evidence that any rights to compensation had been suspended. The Tribunal does not consider there is merit in this submission.
That AGS could not invoke other powers against Mr Peek given the terms of the Act, and the terms and conditions of Mr Peek’s employment.
As previously stated, AGS is not a party to these proceedings and the Tribunal is only concerned with Comcare’s reconsideration decision in relation to s 36(3) of the SRC Act. Whether AGS had power to make the two other directions it did is not a matter for the Tribunal.
Further purported decisions made on 4 May 2006
60. Mr Peek argued that a decision made on 4 May 2006 by AGS, which purported to require him again to attend for an assessment pursuant to s 36(3) of the SRC Act on 1 June 2006 contravened s 26 of the AAT Act. That section limits the circumstances in which a decision under review in this Tribunal may be altered.
61. There is relevantly no reviewable decision before the Tribunal in relation to that matter and accordingly there is no jurisdiction for the Tribunal to consider issues arising from the decision of 4 May 2006. Further, the Tribunal does not consider that the 4 May 2006 decision falls within s 26 in any event because it is a new decision and not a variation of a decision, or the setting aside of a decision, or the making of a decision in substitution for the decision set aside within s 26(2).
Was Ms Pitt’s decision contrary to the medical and factual evidence?
62. The Tribunal’s task is to consider Comcare’s decision. Whether Ms Pitt’s decision was contrary to the medical and factual evidence is in the form of a question for an appeal from her decision in the strict sense, rather than a rehearing on the merits of the case, which is this Tribunal’s task. As set out above, the Tribunal finds that Mr Peek was incapacitated as of 17 January and 5 May 2005, and the correct or preferable decision was that he be required to undergo an examination by Doctor Parmigiani for the assessment of his capability of undertaking a rehabilitation program.
Decision
63.For the above reasons, the reviewable decision is affirmed.
I certify that the 63 preceding paragraphs are a true copy of the reasons for the decision herein of Dr John Campbell, Member
Signed: ………….[Emily Gadsby]…………
AssociateDate of Hearing 11 April 2007
Date of Decision 25 June 2007
Representative for Applicant Self-represented
Solicitors for the Respondent Dibbs Abbott Stillman
Counsel for the Respondent Mr Brendan Kelly