Singh and Comcare

[2011] AATA 533

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 533

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No.s  2010/1016 

GENERAL ADMINISTRATIVE DIVISION		)        & 2010/3084
Re		Samuel Singh

Applicant

And Comcare

Respondent

DECISION

Tribunal M D Allen, Senior Member

Dr M E C Thorpe, Member

Date1 August 2011

PlaceSydney

Decision

1.    The decision in matter 2010/1016 is AFFIRMED; and

2.    The decision in matter 2010/3084 is SET ASIDE and remitted to the Respondent.

.................[sgd]..................

M D Allen, Presiding Member

CATCHWORDS

WORKERS COMPENSATION:  Whether a Return to Work Program was suitable for the Applicant to undertake and was his failure to continue to undertake that program reasonable.

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988, section 37

CASES

Westgate v Australian Telecommunications Authority (1988) 14 ALD 367

REASONS FOR DECISION

1 August 2011 M D Allen, Senior Member
Dr M E C Thorpe, Member

1.      Before the Tribunal were two applications for review, namely:

Application 2010/1016 seeking review of a “reviewable decision” of 17 February 2010, which affirmed a prior determination of 2 October 2009 directing the Applicant to participate in a rehabilitation program commencing 7 October 2009; and

Application 2010/3084 seeking review of a “reviewable decision” of 9 July 2010 which affirmed determinations dated 1 and 9 April 2010. The determination of 1 April 2010 ruled that the Applicant had refused or failed to undertake a rehabilitation program, and that the Applicant’s rights to compensation were suspended pursuant to subsection 37(7) of the Safety, Rehabilitation and Compensation Act 1988 (“SRC Act”). The determination of 9 April 2010 denied payments of compensation to the Applicant, pursuant to s19 SRC Act for the period 19 October 2009 to 19 February 2010.

2. Section 37 SRC Act reads inter alia:

“(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.

…

(3)  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.

…

(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.

(8)  Where an employee's right to compensation is suspended under subsection (7), compensation is not payable in respect of the period of the suspension.”

3.      The…