STEPHEN KEYS and COMCARE

[2009] AATA 500

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 500

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/1332

GENERAL ADMINISTRATIVE  DIVISION		)
Re		STEPHEN KEYS

Applicant

And COMCARE

Respondent

DECISION

Tribunal J. W. Constance, Senior Member

Date2 July 2009

PlaceCanberra

Decision

1.    There is no decision of Comcare which is reviewable in this application.

2.    The application dated 2 January 2009 is dismissed.

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

J. W. Constance, Senior Member

CATCHWORDS

PRACTICE AND PROCEDURE – jurisdiction – failure to provide Applicant with a rehabilitation program not a reviewable decision – no reviewable decision – no jurisdiction

Safety, Rehabilitation and Compensation Act 1988 – Sections 37, 38, 40, 60

Lees v Comcare [1999] FCA 753

Comcare v Sassella [2001] FCA 1514

REASONS FOR DECISION

2 July 2009 J. W. Constance, Senior Member            

INTRODUCTION

1.      In his application to the Tribunal dated 2 January 2009 Mr Keys sought a review of a decision which he says was made in a letter dated 24 December 2008 written to him by Comcare.  The letter related to a claim by Mr Keys under the Safety, Rehabilitation and Compensation Act 1988.

2.      Comcare has raised the question of the jurisdiction of the Tribunal, arguing that there is no reviewable decision.  For the reasons which follow, I have decided that the Tribunal does not have jurisdiction to review any relevant decision of Comcare and the application by Mr Keys will be dismissed.

FACTS

3.      On 21 October 2005 Mr Keys suffered an injury which was related to his employment by the Department of Disability, Housing and Community Services.  Subsequently, Comcare accepted liability under the Act to compensate him in respect of the injury.

4.      On 14 May 2008 Mr Keys requested the Department to have him assessed for his suitability to undertake a rehabilitation program.  This request was refused by the Department and the refusal was confirmed by Comcare on 1 August 2008.  Mr Keys did not seek a review of this decision.

5.      On 5 August 2008 Mr Keys made a further request to be assessed.  In response to this request the Department arranged for Mr Keys to be assessed by Dr George and Advanced Personnel Management.  These assessments were carried out in August 2008 and both Dr George and Advanced Personnel Management reported to the Department.  The Department did not determine that Mr Keys should undertake a rehabilitation program.

6.      On 27 October 2008 Mr Keys wrote to Comcare.  He outlined the history of his requests for a rehabilitation program and concluded:

Consequently, under section 38 of the Act, I hereby request Comcare to review the determinations made under section 36 and/or 37 concerning my rehabilitation assessments by Dr George and APM and the subsequent failure to make a determination concerning my return to work.

The letter dealt with other matters not relevant to this application.

7.      In a Statement of Reasons which accompanied a letter dated 24 December 2008 Comcare advised Mr Keys as follows:

Rehabilitation

In your letter dated 27 October…