Quis and Comcare
[2001] AATA 263
•2 April 2001
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 was advised that he could appeal the decision to the Federal Court under s 39B of the Judiciary Act 1901.
On 20 October 2000 the Applicant's solicitor wrote seeking an extension of time in which to lodge a request for reconsideration of the Respondent's decision (T73).
On 31 October 2000 the Respondent replied refusing to grant an extension of time and advising of a right of appeal to the Tribunal (T75). On 1 November 2000 the Applicant lodged an application for review with the Tribunal.
On 14 December the Tribunal received a letter from the Respondent's representative seeking a directions hearing on the basis that the Tribunal has no jurisdiction to review the decision the subject of the application. A hearing to determine jurisdiction was held on 5 March 2001.
The respondent's argumentThe Respondent argued that there was no reviewable decision before the Tribunal because:
The Applicant's payments ceased under s 37(7) of the Safety Rehabilitation and Compensation Act 1988 (the "SRC Act"). That provision is self-executing and requires no decision by a Comcare delegate. The way that s 37(7) is constructed it automatically operates if several conditions are met. These are: (i) an employee must fail to undertake a rehabilitation program provided for the employee under s 37; and (ii) that must occur without any reasonable excuse. Should these two requirements be met then the employee's rights to compensation are suspended until he or she undertakes the program.
Sections 38(4) and 62 of the SRC Act are not available in relation to suspension of entitlements under s 37(7) of the Act. This is because each of these provisions requires that there is a determination to be reviewed internally by a Comcare review officer for it to operate. Section 37(7) operates without there being a determination.
The only decision before the Tribunal is the "reviewable decision" by the Respondent dated 31 October 2000. That decision is not reviewable because the decision-maker incorrectly failed to grasp that there was no determination under s 37(7) of the SRC Act that was amenable to reconsideration under s 38(4) or s 62 of the SRC Act. Section 38(3) or 62(3)(b) could not then operate to permit an extension of time within which to seek a reconsideration. There is effectively nothing to review.
Earlier decisions such as Trajkovski v Telstra Corporation (1998) 81 FCR 459, Chowdhary v Bayne (1999) 29 AAR 100 and Re Firkin and Broken Hill Proprietary Company [1999] AATA 287 held that where s 37(7) operates to suspend an entitlement to compensation or a right to institute or continue proceedings under the SRC Act the Tribunal can, in determining whether it has jurisdiction to review a "reviewable decision", consider the reasonableness or otherwise of the refusal or failure to undertake the rehabilitation program. In each of these cases there was a reviewable decision whereas there is none properly available or made in this case.
In this case, as distinct from those earlier cases, the suspension on 20 October 1999 did not follow a broader determination ceasing liability for incapacity or refusing compensation for medical expenses.
Even if the Tribunal were minded to review the result of the operation of s 37(7) and found that the failure was reasonable there is no power under the Administrative Appeals Tribunal Act 1975 (the "AAT Act") or SRC Act that the Tribunal could exercise because s 37(7) is self-executing.
The applicant's argument
In response, the Applicant's arguments were as follows:
The SRC Act should be interpreted beneficially and the Respondent should act fairly and in good faith, without regard to technicalities. The Applicant had a reasonable excuse for abandoning the rehabilitation program.
Certain facts have to exist before s 37(7) can operate. The Tribunal should be able to inquire into whether these are established.
The courts do not want to be troubled by judicial review applications when merits review is available.
The argument by the Respondent that the only decision before the Tribunal was that of 31 October 2000 is incorrect. There is the decision of 5 October 1999 (T62). This was a communication by a Comcare delegate to the Applicant asking him to resume his rehabilitation program or provide reasons for failing to do so. He was given 14 days in which to comply.
Section 37(7) of the Act is self-executing only once the Respondent has made a lawful decision that the Applicant has not offered a reasonable excuse.
The decision has had the effect of denying the Applicant access to other benefits. It is not only about invocation of s 37(7) of the SRC Act.
The legislation
The operation of s 37(7) was covered earlier in the Respondent's arguments.
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 and, where the authority so determines, it may make arrangements with an approved program provider for the provision of a rehabilitation program for the employee.
…
(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.
…
38 Review of certain determinations by Comcare(1)As soon as practicable after a rehabilitation authority (other than a relevant authority) makes a determination under section 36 or 37, the authority shall cause to be served on the employee to whom the determination relates a notice in writing setting out:
(a) the terms of the determination;
(b) the reasons for the determination; and(c) a statement to the effect that the employee may, if dissatisfied with the determination, request Comcare for a review of the determination under this section.
(2) An employee in respect of whom a determination under section 36 or 37 is made by a rehabilitation authority (other than a relevant authority) may, by notice in writing given to Comcare, request Comcare to review the determination.
(3) A request shall:
(a) set out the reasons for the request; and
(b) be given to Comcare within 30 days after the day on which the determination first came to the notice of the employee, or within such further period (if any) as Comcare, either before or after the expiration of that period, allows.
(4) 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.
…
60 Interpretation
(1) In this part
…"decision" has the same meaning as in the Administrative Appeals Tribunal Act 1975
…
62 Reconsideration of determinations(1) A determining authority may, on its own motion:
(a) reconsider a determination made by it; or
(b) cause such a determination to be reconsidered by a person to whom its power under this section is delegated, being a person other than the person who made, or was involved in the making of, the determination;
whether or not a proceeding has been instituted or completed under this Part in respect of a reviewable decision made in relation to that determination.
(2)A request to a determining authority to reconsider a determination made by it may be made by:
(a) the claimant; or
(b) if the determination affects the Commonwealth—the Commonwealth; or
(c) if the determination affects a Commonwealth authority that is not a licensed authority—the Commonwealth or that authority; or
(d) if the determination affects a licensed authority that holds a Class 1 Licence under Part VIIIA—the licensed authority; or
(e) if the determination affects a licensed authority that holds a Class 2 Licence under Part VIIIA—the Commonwealth; or
(f) if the determination affects a licensed corporation that holds a Class A licence under Part VIIIB—the licensed corporation.
(3) A request for reconsideration of a determination shall:
(a) set out the reasons for the request; and
(b) be given to the determining authority within 30 days after the day on which the determination first came to the notice of the person making the request, or within such further period (if any) as the determining authority, either before or after the expiration of that period, allows.
(4) On receipt of a request, the determining authority shall reconsider the determination or cause the determination to be reconsidered by a person to whom its power under this section is delegated, being a person other than a person who made, or was involved in the making of, the determination.
(5) Where a person reconsiders a determination, the person may make a decision affirming or revoking the determination or varying the determination in such manner as the person thinks fit.
…
64 Applications to the Administrative Appeals Tribunal
(1)Application to the Administrative Appeals Tribunal for review of a reviewable decision may be made by:
(a) the claimant; or
(b) if the decision affects the Commonwealth—the Commonwealth; or(c) if the determination affects a Commonwealth authority that is not a licensed authority—the Commonwealth or that authority; or
(d) if the determination affects a licensed authority that holds a Class 1 Licence under Part VIIIA—the licensed authority; or
(e) if the determination affects a licensed authority that holds a Class 2 Licence under Part VIIIA:
(i) the Commonwealth; and
(ii) in the circumstances mentioned in subsection (2)—the licensed authority; or
(f) if the determination affects a licensed authority that holds a Class 3 Licence under Part VIIIA and the circumstances mentioned in subsection (2) apply—the licensed authority; or
(g) if the determination affects a licensed corporation that holds a Class A Licence under Part VIIIB—the licensed corporation; or
(h) if the determination affects a licensed corporation that holds a Class B Licence under Part VIIIB and the circumstances mentioned in subsection (2) apply—the licensed corporation.
(2) The circumstances mentioned in subparagraph (1)(e)(ii) and paragraphs (1)(f) and (h) are that the licence is subject to a condition referred to in subparagraph 107G(3)(d)(ii) or paragraph 108H(4)(d), as the case may be.
(3) Despite section 27 of the Administrative Appeals Tribunal Act 1975 , a person may not make an application to the Administrative Appeals Tribunal for a review of a reviewable decision except as provided by subsection (1) of this section.
For the Tribunal to have jurisdiction there must be a reviewable decision as defined in s 60(1) of the SRC Act. This is a decision made under s 38(4) or s 62 of the Act.
Section 38 of the SRC Act provides for Comcare to review a determination made by a rehabilitation authority under s 36 or s 37. A determination so reviewed can be the subject of an appeal to the Tribunal.
Section 62 permits a claimant to seek a reconsideration of a determination made by a determining authority such as Comcare. The determining authority has then to conduct the reconsideration. A determining authority can conduct a reconsideration on its own motion under s 62(1).
It will be noted that each of ss 38 and 62 hinge on the existence of a determination which is up for review.
Case lawThe decided cases support a role for the Tribunal in s 37(7) cases in that the Tribunal has jurisdiction to consider whether it has jurisdiction to inquire into the merits of the process whereby the employee has been denied compensation payments. Trajkovski v Telstra Corporation (supra) and Buck v Comcare (1996) 137 ALR 335 are Federal Court authorities for that proposition.
However, the issue then becomes what the Tribunal can do if it decides that it has jurisdiction. For example, it may consider that the prerequisites in s 37(7) for that provision to have its automatic effect have not been met. In the instant case Mr Dubé, for the Respondent, distinguished this case from all previous reported cases on s 37(7) except for the Tribunal decision in RePeisley and Comcare [2001] AATA 121. In the present case, as in the Peisley case (supra), the sole issue in the only purported reviewable decision is the applicability of s 37(7). In the earlier cases there were uncontroversial reviewable decisions covering several other matters alongside the s 37(7) consequence.
Of the decided cases, two are most instructive. The Federal Court decision in Chowdhary v Bayne [1999] FCA 41 involved several primary decisions. In its earlier Tribunal phase, Re Anita Chowdhary and Comcare [1998] AATA 448 the respondent had made several decisions that became reviewable decisions:
A primary decision-maker on 16 January 1996 decided to cease payments for the employee's physiotherapy.
On 22 February 1996 a primary decision-maker decided to cease payment for the employee's home help.
The employee sought reconsideration of these two decisions. The reconsideration generated a reviewable decision affirming the two original decisions on 17 April 1996.
The employee appealed the reviewable decision to the Tribunal (matter number A96/239).
On 29 May 1996 a primary decision-maker supposedly decided that s 37(7) applied with the result that payment of compensation was suspended from 29 May 1996.
This was affirmed in a purported reviewable decision on 29 May 1996.
The employee appealed to the Tribunal against this decision (matter number A96/299).
The Tribunal considered both applications for review at the same time in a hearing on 11 and 12 August 1997.
The Federal Court's decision in Trajkovski (supra) was handed down on 6 March 1998.
The Tribunal handed down its decision on 22 June 1998. The Tribunal was aware of the decision in Trajkovski (supra) and decided that it lacked jurisdiction to review any of the decisions presented to it for review. It did consider, however, that it was obliged to consider whether s 37(7) should have operated full stop. This was for the purpose of determining whether it had jurisdiction to review the decisions on physiotherapy and home help (A96/239). That is to say the Tribunal considered that it had to satisfy itself that the employee's failure to engage in a specified rehabilitation program was "without reasonable excuse". The Tribunal accepted that because of the self-executing nature of s 37(7) the employee's application for review in relation to that provision (A96/299) was incompetent. The Tribunal considered that the effect of s 37(7) was to deny it jurisdiction to review also the decisions in respect of physiotherapy and home help.
In the Federal Court Finn J noted a number of propositions. These included:
Where, as in the instant case, but for the operation of s 37(7), an employee would be entitled to appeal to the Tribunal for a review of a decision made reviewable by the Act, ie what would normally be a reviewable decision, the Tribunal can consider the applicability of s 37(7) for the purpose of coming to a conclusion as to whether it has jurisdiction in the matter.
A Tribunal decision that it does, or does not, have jurisdiction because of s 37(7) can be the subject of an appeal to the Federal Court under s 44 of the AAT Act. The Court will reach its own conclusion as to whether the Tribunal had jurisdiction to determine the appeal made to it.
In the Chowdhary case (supra) itself this led to the following:
1.Section 37(7) apart, the Tribunal had jurisdiction to entertain at least the appeals relating to physiotherapy and home services, a reviewable decision having been made in respect of these.
2.The Tribunal was obliged to consider whether it had jurisdiction to entertain those appeals or whether the employee's rights to appeal had been suspended.
3.The employee could appeal to the Federal Court from the Tribunal decision that it lacked jurisdiction. This is under s 44 of the AAT Act.
4.It was for the Federal Court to reach its own decision on whether the employee had a reasonable excuse under s 37(7) of the SRC Act.
In paragraph 12 of the decision Finn J states:
"In consequence the AAT Act s 44 appeal will raise for direct consideration whether there was such an excuse. If there was, then the 29 May 1996 suspension of compensation payments lacked lawful foundation and the Tribunal's declining of jurisdiction to entertain at least the physiotherapy and home services appeals was an error of law. If there was not, then s 37(7) holds sway."
In the instant case these principles lead to the following propositions:
1.The only issue the subject of a Tribunal appeal in the instant case is the suspension of regular payments. In the instant case, unlike the Chowdhary case (supra), there can be no suggestion that, regardless of s 37(7), the Tribunal has jurisdiction to entertain at least other appeals against reviewable decisions relating to such matters as physiotherapy or home services. No reviewable decisions have been made in respect of such other types of compensation payments.
2.The Tribunal is not obliged to consider whether it has jurisdiction to entertain appeals on such matters as physiotherapy or home services compensation payments because these are not in issue.
3.The employee can appeal to the Federal Court from any possible Tribunal decision that it lacks jurisdiction. This is under s 44 of the AAT Act.
4.It would be for the Federal Court in such an appeal to reach its own decision on whether the employee had a reasonable excuse under s 37(7) of the SRC Act.
This takes the Tribunal to Mr Dubé's proposition that there is nothing for the Tribunal to review even if it decides that the Applicant had a reasonable excuse for refusing or failing to undertake the rehabilitation program in question. The instant case is significantly distinguishable from Chowdhary (supra).
The second decided case that the Tribunal wishes to consider is the Peisley case (supra). The central facts in that case are as follows.
The applicant sustained a neck sprain injury at work on 22 January 1999. On 22 February 1999 the respondent accepted compensation liability. The applicant subsequently had periods off work and eventually moved from Canberra to Sydney in mid-1999. On 6 September 1999 the applicant signed a return to work (RTW) plan. This was a rehabilitation determination under s 37(1) of the Act. The RTW implementation did not work out and on 17 November 1999 a delegate of the respondent wrote to the applicant detailing areas of concern. Reference was made to s 37(7) of the Act. The applicant was required to either participate in the program or provide reasons for his refusal or failure to do so.
The applicant wrote on 25 November 1999 responding to each of the concerns detailed. He also sought a reconsideration of the determination of September 1999 requiring his participation in the RTW program.
On 4 January 2000 a delegate of the respondent wrote to the applicant and said, amongst other things, that the applicant had not provided a reasonable excuse for refusing or failing to undertake the rehabilitation program. He said that the applicant's compensation rights were suspended forthwith. He advised the applicant that a review right was available under s 39B of the Judiciary Act and that the letter of 17 November from the delegate to the applicant was not a determination so there was no right to request a reconsideration in respect of its content. There was, however, an attached notice of rights that invited the applicant to seek a reconsideration if he wished under s 62 of the SRC Act and he could appeal from there to the Tribunal if still dissatisfied.
On 2 March 2000 a Comcare independent review officer informed the applicant that the suspension was affirmed. The applicant had requested a reconsideration and was accorded one.
The matter was brought to the Tribunal prior to consideration of the substantive issues for the Tribunal to consider whether it had jurisdiction to consider the substantive application. That is to say that the context in Peisley (supra) is very similar to the context in the instant case.
The Tribunal in Peisley decided that it had no jurisdiction to review the matter of the substantive application. En route to that result the Tribunal made the following findings or comments of interest:
The applicant's letter of 25 November 1999 contained sufficient references to matters pertinent to the RTW program for it to be taken to be a request for reconsideration of the rehabilitation determination of 6 September 1999. This was a request under s 38(3)(b) of the Act.
That request was made out of time. This issue was not addressed by the respondent's delegate in the letter of 4 January 2000. That letter dealt only with the lack of reasonable excuse and did not refer to s 38 or the rehabilitation determination. The letter of 4 January did not constitute a reconsideration decision in response to the applicant's letter of 25 November 1999.
At the time of suspension of compensation entitlements under s 37(7) no reconsideration decision had been made as regards the applicant's rehabilitation program.
There was (and is) no provision in the SRC Act requiring the respondent to make a reconsideration decision before s 37(7) may operate. Section 37(7) simply operates in the event of failure or refusal to undertake a rehabilitation program without reasonable excuse.
The SRC Act does not provide for a failure to make a decision to be deemed a reviewable decision.
There was no reviewable decision at the time of suspension of the applicant's entitlements on 4 January 2000. There being no reviewable decision, the Tribunal had no jurisdiction to consider the threshold question ("reasonable excuse") of s 37(7) of the SRC Act.
Findings on material questions of fact with reference to the evidence or other material on which the findings are based
In the Tribunal's view Mr Dubé correctly pressed that the Peisley (supra) decision was directly relevant and, inferentially, was correctly decided. At the end of the day the Tribunal in performing its role in relation to the SRC Act must be able to identify a reviewable decision as a first step. In other cases involving s 37(7) such as Chowdhary (supra) there was a reviewable decision in respect of which the Tribunal could perform functions if it could find a method of assuming jurisdiction because s 37(7) had operated improperly. That is to say that in the earlier cases it was possible to review other decisions if the Tribunal could find that s 37(7) should not have operated at all because the applicant had a reasonable excuse for refusing or failing to undertake a rehabilitation program.
In Peisley (supra) and the instant case there was (and is) no reviewable decision. Even if the Tribunal finds that the requirements for the operation of s 37(7) have not been met there is no determination involved in the operation of s 37(7) because of its manner of drafting. There is then no determination available for reconsideration under s 62 or s 38(4) of the SRC Act. The instant case is even clearer than was Peisley (supra). In the instant case the Applicant does not appear from the Section 37 Statement and documents to have sought under s 38(3)(b) a reconsideration of the terms of the determination that he undertake the rehabilitation program. It is not to the point that a Comcare review officer purported to reconsider the suspension outcome but affirmed it on the basis that the Applicant was out of time in seeking the reconsideration. That purported reconsideration was a nullity because it was not authorised by the SRC Act. Although it bears the signs of being a reviewable decision it is not any such thing in law.
ConclusionThe Tribunal finds that there is no reviewable decision in this matter and that it has no jurisdiction to review the purported reviewable decision under review.
This result means that the Tribunal has rejected the arguments put by the Applicant's representative. The Tribunal's views on the Applicant's submissions are set out next.
The first point put was that the SRC Act should be interpreted beneficially and the Respondent should act fairly and in good faith, without regard to technicalities. This is superficially attractive and can often be accommodated in decision-making under the Act. However, as the SRC Act is clear as interpreted by the Federal Court, the Tribunal must act according to law. In the Tribunal's view, in the present context there is no room for it to assert jurisdiction where the law says it can not.
The second point was that the Applicant had a reasonable excuse for abandoning the rehabilitation program. This may be so. However, the SRC Act does not permit that question to be considered in a reconsideration context. The Applicant must approach the Federal Court, as advised by the Respondent in T64 on 20 October 1999.
The third point was that certain facts have, under the SRC Act, to exist before s 37(7) can operate. The Tribunal should be able to inquire into whether these are established. This argument fails for the same reason as did the second argument.
The fourth argument was that the courts do not want to be troubled by judicial review applications when merits review exists. The Tribunal understands this. However, in the instant case there is no option of merits review.
The fifth point was that the argument by the Respondent that the only decision before the Tribunal was that of 31 October 2000 is incorrect. There is the decision of 5 October 1999 (T62). This was a communication by a Comcare delegate to the Applicant asking him to resume his rehabilitation program or provide reasons for failing to do so. He was given 14 days in which to comply. In the Tribunal's view this was not a decision. It was a notice of intention to invoke s 37(7) at some stage in the future. It stated that this could be prevented if the Applicant provided certain information, which he did not do. The issue is very like that in front of the Tribunal in a different context in Re Lawson and Director-General of Social Services (1980) 3 ALD 58.
The sixth point was that s 37(7) of the SRC Act is self-executing only once the Respondent has made a lawful decision that the Applicant has not offered a reasonable excuse. This could be a salient point if there was a reviewable decision open for the Tribunal to consider if it were to decide that the Applicant had a reasonable excuse.
The final point was that the decision has had the effect of denying the Applicant access to other benefits. It is not only about invocation of s 37(7) of the SRC Act. This is a valid point and it could be an effective argument if there had been decisions made about ancillary compensation benefits and if these decisions had resulted in requests for reconsideration before the operation of s 37(7).
DecisionThe Tribunal has no jurisdiction in respect of this application.
I certify that the 42 preceding paragraphs are a true copy of the reasons for the decision herein of M J Sassella, Senior Member
Signed: James Enderbury .....................................................................................
AssociateDate of Hearing 5 March 2001
Date of Decision 2 April 2001
Counsel for the Applicant David Lander
Solicitor for the Applicant Lander & Co
Counsel for the Respondent Benjamin Dubé
Solicitor for the Respondent Australian Government Solicitor
2
3
0