DECISION AND REASONS FOR DECISION [2001] AATA 263
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2000/414
GENERAL ADMINISTRATIVE DIVISION )
Re ADALBERT QUIS
Applicant
And COMCARE
Respondent
DECISION
Tribunal M J Sassella, Senior Member
Date2 April 2001
PlaceCanberra
Decision The Tribunal has no jurisdiction in respect of this application.
................. (Sgd)................
M J Sassella
Senior Member
CATCHWORDS
PRACTICE AND PROCEDURE – Tribunal's jurisdiction to review suspension of payments under sub-section 37(7) of Safety Rehabilitation and Compensation Act 1988 – whether a refusal to grant extension of time and advice of appeal rights a reviewable decision – suspension not associated with a reviewable decision ceasing liability for incapacity or refusing compensation for medical or other expenses
COMPENSATION – rehabilitation program – suspension of entitlements pursuant to sub-section 37(7) of Safety Rehabilitation and Compensation Act 1988
Administrative Appeals Tribunal Act 1975 s 44
Safety Rehabilitation and Compensation Act 1988 ss 37, 38, 62
Trajkovski v Telstra Corporation Ltd (1988) 81 FCR 459
Buck v Comcare (1996) 137 ALR 335
Chowdhary v Bayne [1999] FCA 41
Re Lawson and Director-General of Social Services (1980) 3 ALD 58
Re Anita Chowdhary and Comcare [1998] AATA 448
Re Firkin and Broken Hill Proprietary Company Ltd [1999] AATA 287
Re Peisley and Comcare [2001] AATA 121
REASONS FOR DECISION
2 April 2001 M J Sassella, Senior Member
History of application
On 7 September 1998 Mr Adalbert Quis (the "Applicant") lodged a claim for compensation in respect of achilles tendonitis right ankle (T4). The claim form also referred to pain in shoulder, neck, right leg and lower back. The Applicant was injured restraining an inmate at a detention centre on 26 March 1998.
On 14 September 1998 Comcare (the "Respondent") decided to admit liability in respect of the injury described as ankle sprain (T5). Liability was accepted to 6 May 1998. This was revised and ongoing incapacity payments were made to top up the Applicant's reduced earnings attributable to continuing effects of the injury. Comcare also covered the Applicant for various medical and physiotherapy expenses.
On 30 June 1999 the Applicant commenced a graduated return to work program (T37).
On 24 September 1999 the Applicant claimed compensation for a period of reduced earnings indicating a period of incapacity running from 6 August 1999 to 30 September 1999 (T54).
On 28 September 1999 the Applicant told his employer that he wanted to resign with effect from 24 September 1999 (T56). He was told that this would remove him from his rehabilitation program and that would be likely to lead to cessation of his compensation payments. He had moved to Western Australia. He had been absent from work from 3 to 24 September 1999 because of "achilles tendon".
On 20 October 1999 the Respondent wrote to the Applicant telling him that his payments had been suspended because of his non-compliance with a rehabilitation program agreed on 7 July 1999 (at T41). The Applicant had provided no reasonable excuse for refusing or failing to undertake the rehabilitation program. He…
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- AGLC
- Quis and Comcare [2001] AATA 263
- Case
- [2001] AATA 263
- Decision Date
CaseChat Overview and Summary
The AAT found that there was no reviewable decision in this case, as the operation of sub-section 37(7) did not involve a determination that could be reconsidered under the SRC Act. The Tribunal held that the purported reconsideration of the suspension outcome by a Comcare review officer was a nullity, as it was not authorised by the SRC Act. The Tribunal also rejected the applicant's arguments that the SRC Act should be interpreted beneficially, that the applicant had a reasonable excuse for abandoning the rehabilitation program, and that the Tribunal should be able to inquire into whether certain facts had to exist before sub-section 37(7) could operate.
The AAT held that it had no jurisdiction to review the purported reviewable decision under review, as there was no determination available for reconsideration under section 62 or section 38(4) of the SRC Act. The Tribunal found that the applicant must approach the Federal Court to challenge the decision to suspend payments, as advised by the respondent in T64 on 20 October 1999.
The AAT dismissed the application for review and the applicant's appeal to the Federal Court was also dismissed.
Orders
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Background
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Decision
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Ratio Decidendi
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