STEPHEN KEYS and COMCARE
[2009] AATA 500
•2 July 2009
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 2008 addressed to Comcare titled: “Request for review of determination under s.36 dated 27 October 2008, it is noted that you reported of the Safety Rehabilitation & Compensation Act 1988 Claim No: 844229/04 (sic) you reported:
o“I refer to my letter dated 5 August 2008 concerning Comcare’s decision on 1 August 2008 affirming the determination issued by James Hogben to refuse my request for rehabilitation assessment under s.36 in connection with Claim No. 844229/03. I previously advised that I was dissatisfied with your decision, and that I intended to lodge an application with the AAT to have it reviewed …
o… I have decided that there would be no useful purpose in pursing an application to the AAT to review Comcare’s decision notified on 1 August affirming the determination issued by James Hogben … on 13 June 2008 …
The reasons for affirming the determination under review were set out by the Review Officer, Ms Marilyn Valdez on 1 August 2008. You were further advised that if you were dissatisfied with that decision, that you may lodge an application with the Administrative Appeals Tribunal (AAT) to have the determination reviewed. In this regard, I will not be addressing matter further, and if your wish to progress this issue further you will be required to lodge an application with the AAT (sic).
LEGISLATION
8. Section 36 of the Act provides in part that on the written request of an injured employee the rehabilitation authority shall arrange for the assessment of the employee’s capability of undertaking a rehabilitation program. In Mr Keys' case the Department was the rehabilitation authority.
9. Subsection 37(1) of the Act provides:
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.
10. Subsection 38(4) provides for the review of determinations made by a rehabilitation authority under sections 36 and 37. This review is by Comcare.
11. Under section 64 application may be made to this Tribunal to review a reviewable decision made by Comcare under subsection 38(4). Reviewable decision is defined in subsection 60(1):
reviewable decision means a decision made under subsection 38(4) or section 62.
This is the review power relied upon by Mr Keys.
THE DECISION TO BE REVIEWED
12. In his application to the Tribunal Mr Keys identified the decision he sought to have reviewed as being made on 24 December 2008 and described it as follows:
Decision under s.38(4) of the Safety, Rehabilitation and Compensation Act 1988 (Cth)
Copy of the Notification of the decision and Statement of Reasons is attached – the relevant part of the Statement of Reasons is headed “Rehabilitation” on pages 11-12; the Statement of Reasons refers to “the reasons for affirming the determination under review … set out by the review officer, Marilyn Valdez on 1 August 2008” – the notification of the decision on 1 August 2008 and the Statement of Reasons for that decision also attached.
This description referred to the text set out in paragraph 7 above.
13. After discussion with Counsel during the hearing, it became clear that Mr Keys was asking the Tribunal to review the failure by Comcare to determine a rehabilitation program for him. Mr Keys did not seek a review of the decisions made by the Department to appoint Dr George and Advanced Personnel Management to carry out their assessments. He agreed with these determinations.
ISSUE FOR DETERMINATION
14. The only issue for determination is whether the Tribunal has jurisdiction to review the failure of Comcare to provide Mr Keys with a rehabilitation program under section 37.
REASONING
15. It is clear that the legislation provides for a three tier decision making process – a determination by the rehabilitation authority (section 37), a review by Comcare (section 38), and a review by this Tribunal (section 60). This process must be complied with to found the jurisdiction of the Tribunal.[1] It is also clear from the definition of reviewable decision referred to above that the jurisdiction of the Tribunal is limited to reviewing a decision of Comcare made under subsection 38(4).
[1] Lees v Comcare [1999] FCA 753.
16. It was argued on behalf of Mr Keys that the Tribunal has jurisdiction to review an alleged affirmation by Comcare of the Department’s failure to implement the reports of Dr George and Advanced Personnel Management. It was put that section 40 of the Act creates an obligation on the Department to do so. I was referred also to the decision of the Federal Court in Comcare v Sassella.[2] In that case Finn J made the following comments by way of a postscript:[3]
In the course of its submissions Comcare contended that Qantas had no obligation under the SRC Act to consider whether or not it would provide a rehabilitation program to Ms Brophy and that only as a matter of good administration was there any requirement that it even consider whether it should turn its mind to the question at all.
I do not in the circumstances have to express a concluded view on this submission and refrain from doing so. I would merely say that powerful arguments can be mustered against it, regard being had to the right given an employee under s 36(1) to request a rehabilitation assessment and to the manifest purpose of rehabilitation in the scheme of the SRC Act… I am merely indicating that where an assessment has been required, a rehabilitation authority may well be positively obliged, in light of the assessment made (s 38(6)), to consider whether to provide a rehabilitation program: see Telstra Corporation Ltd v Slater [2001] FCA 149 at para 58.
[2] [2001] FCA 1514.
[3] At paras 29-30.
17. Whether or not the Department and/or Comcare has an obligation to decide if Mr Keys should be provided with a rehabilitation program is not relevant to the Tribunal’s jurisdiction. It is not suggested, nor is it the case, that the Tribunal has the power to require either entity to make such a decision. This is not a situation in which a failure to make a decision is deemed to be a decision. For such a situation to arise there would need to be a provision in the legislation to this effect, such as appears in s 25(5) of the Administrative Appeals Tribunal Act 1975. There is no such provision in relation to the decisions to which Mr Keys refers.
18. I do not accept Mr Keys’ argument based on section 40. This provision requires an employer to take reasonable steps to provide an injured employee with employment in certain circumstances where a rehabilitation program has already been put in place. It does not place a duty on a rehabilitation authority to implement a rehabilitation program.
19. I am satisfied that the Department has not made a determination (either favourable or unfavourable to Mr Keys) in relation to a rehabilitation program under section 37. This being so, there is no decision for Comcare to review under subsection 38(4) and consequently no decision for this Tribunal to review under section 60.
20. The judgement in Comcare v Sassella to which I have referred dealt with a situation very similar to that in which Mr Keys finds himself. In that matter the rehabilitation authority had decided not to provide a rehabilitation program, but had not made this decision until after the applicant had made her application to review a decision to refuse such a program. Although the Court left open the question of whether there was a duty to make such a decision, it did decide that there must be a determination by the rehabilitation authority before Comcare’s power to review that determination is enlivened. Finn J said:
The SRC Act does not prescribe a time within which a s37(1) decision is to be made such as might attract a deeming provision equating a failure to decide with a negative determination: cf Administrative Appeals Tribunal Act, 1975, s 25(5); see also Ombudsman Act, 1976 (Cth), s 10. It has not been suggested in submissions that s 37(1) is subject to an implied limitation that any determination made by the rehabilitation authority is to be made within “a reasonable time” of its receipt of a rehabilitation assessment or of an employee request for such a program consequent upon an assessment…
In the end what one is left with is not some antecedent decision (either made or deemed to have been made in consequence of some statutory prescription) which could have given jurisdictional life, first, to Comcare’s s 38(4) review and then to the s 64 application to the Tribunal. Rather, the decision relied upon by the Tribunal can, on the evidence to which it referred, only be ascribed to a period later than both Ms Brophy’s request to Comcare and the application to the Tribunal. The Tribunal lacked jurisdiction to review that decision. Comcare had not made any reviewable decision in relation to it: Lees v Comcare [1999] FCA 753.[4]
[4] Comcare v Sassella [2001] FCA 1514 at paras 26-27.
DECISION
21. There is no decision of Comcare which is reviewable in this application.
22. The application dated 2 January 2009 is dismissed.
I certify that the 22 preceding paragraphs are a true copy of the reasons for the decision herein of J. W. Constance, Senior Member.
Signed: .....................[sgd]...........................................................
T. Aviram, AssociateDate of Hearing 5 May 2009
Date of Decision 2 July 2009
Counsel for the Applicant Ms J. Keys
Counsel for the Respondent Mr A. Dillon, Australian Government Solicitor
Solicitor for the Respondent Ms S. Clifford, Australian Government Solicitor
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