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PRACTICE AND PROCEDURE - Application for dismissal pursuant to section 42B - Decisions relating to rehabilitation programs implemented pursuant to section 37 of the Safety, Rehabilitation and Compensation Act 1988 - No practical purpose served by review of expired rehabilitation programs - Overtaken by more recent rehabilitation program which is before the Tribunal - Applicant seeking higher amount of incapacity payments - Tribunal does not have jurisdiction with respect to incapacity payments - Applications dismissed.

Safety, Rehabilitation and Compensation Act 1988, s 37

Administrative Appeals Tribunal Act 1975, subs 42B(1)

Re Daff and Comcare [2010] AATA 732

Re Griffiths and Telstra Corporation Limited [2013] AATA 695

Re Fogarty and Comcare [2007] AATA 1299

1. Until November 2013 the applicant, Mr Cook, was employed in a senior role with the Department of Defence. I understand he accepted a separation package which resulted in his employment with the Department being terminated on 15 November 2013.
2. Unfortunately, during 2012, prior to the termination of his employment, Mr Cook sustained an injury, namely a major depressive disorder (recurrent episode), for which compensation liability has been accepted.
3. There is no dispute in the context of these applications that, at all relevant times, the respondent, Comcare, has been liable to pay compensation to Mr Cook. The three applications currently before me relate to rehabilitation programs developed and implemented pursuant to s 37 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act). All three applications relate to the correctness of decisions made with respect to those rehabilitation programs.
4. None of the three applications has yet proceeded to a substantive hearing. However, on 25 February 2016, Comcare's solicitor, Mr MacGregor, wrote to the Tribunal requesting that all three applications be dismissed pursuant to subs 42B(1) of the Administrative Appeals Tribunal Act 1975 (the AAT Act), on the grounds that they were lacking in substance, were misconceived, or had no reasonable prospect of success. A hearing accordingly took place with respect to that application on 23 March 2016, at which both parties made oral submissions.
5. Subsequent to that hearing, the Tribunal sought further submissions from the parties and a further hearing was held on 20 April 2016. Both parties also provided additional material and written submissions either prior to or after that resumed hearing.
6. On 6 May 2016, I gave my Decision on the respondent's application, together with oral Reasons. On 11 May 2016, the respondent requested written Reasons, and these Reasons have been prepared in answer to that request.
7. Before addressing the issues which arise from the dismissal application more directly, I will first briefly outline the procedural history of the three applications, and identify the substantive issues arising from each application.

THE PROCEDURAL HISTORY AND SUBJECT MATTER OF THE APPLICATIONS

1. This application seeks review of a decision dated 14 July 2015[1], which affirmed a determination dated 5 May 2015 by the Department of Defence under s 37 of the SRC Act, that Mr Cook should undertake a rehabilitation program. That program imposed responsibilities on Mr Cook including the following:
   • Attend all meetings as required;
   • Continue job seeking activities;
   • Attend job interviews as offered;
   • Weekly email update of all job seeking activities undertaken;
   • Enrol in a management course (if approved);
   • Attend a case conference; and
   • Attend a medical assessment.

1. This application seeks review of a later reconsideration decision of 31 October 2015, which affirmed a determination of the Department of Defence dated 6 August 2015. By that determination, the Department extended the expiry date of the program, from 16 August 2015 to 17 September 2015, and made some other minor changes. The reconsideration delegate noted that the goal of the program dated 6 August 2015 remained the same as the previous program, which was "Mr Cook to secure alternative employment within capacity", and concluded that the alterations made to the program were reasonable and appropriate in the circumstances.

1. This application seeks review of a subsequent reconsideration decision dated 27 November 2015, which affirmed a determination by the Department of Defence dated 17 September 2015. By the decision of 17 September 2015, the Department altered the end date of the rehabilitation program so as to extend it to 30 November 2015, and made one other minor alteration to the program. The reconsideration delegate found that these alterations were appropriate and reasonable.

1. In support of its application for all three applications to be dismissed, Mr MacGregor on behalf of Comcare directed my attention to the fact that as at January this year, Mr Cook had obtained full-time employment as a maintenance officer, albeit at a lower level than his previous employment. Mr MacGregor contended that, in essence, the goal of the rehabilitation programs under consideration had been achieved and there could be no practical benefit to Mr Cook, nor any other purpose served, by the Tribunal now reviewing the content and duration of rehabilitation programs which expired last year.
2. Mr MacGregor contended that all three applications lacked any utility as, even if Mr Cook was successful in persuading the Tribunal that the content or length of the rehabilitation programs should have been different, this would not result in any tangible benefit to him. Accordingly, the applications were misconceived and also frivolous in the sense that they could not deliver any benefit to Mr Cook.
3. Mr MacGregor also contended that the Tribunal's jurisdiction was limited to the period to which the relevant plans related. Mr MacGregor pointed out that a new rehabilitation plan had been put in place after the expiration of the plan which ended on 30 November 2015, and, although it had expired on 29 February 2016, that plan remained the most recent. In this context, he said it was clear that the Tribunal was limited in the context of these three applications to reviewing the content of the relevant plans between the dates to which they collectively related, being 5 May 2015 and 30 November 2015. Mr MacGregor contended that if Mr Cook wished to challenge the content and duration of the last program, then he needed to seek review of the relevant decisions relating to that plan.

1. At the initial hearing, I sought to clarify Mr Cook's objective in lodging the three applications. He indicated that one of his objectives was to persuade the Tribunal to extend his rehabilitation program so that it continued into the future. He pointed to the fact that the most recent rehabilitation program was closed on 29 February 2016 and said he wanted the program extended. He also wanted a change in the content of the program so that it was tailored to his current circumstances. He pointed out that he was not working at the same level that he had been previously, and needed assistance to achieve this.
2. In addition, Mr Cook drew my attention to subs 37(5) of the SRC Act, which provides as follows:

(5) Where an employee is undertaking a rehabilitation program under this section, compensation is not payable to the employee under section 19 or 31 but:

(a) if the employee is undertaking a full-time program - compensation is payable to the person of an amount per week equal to the amount per week of the compensation that would, but for this subsection, have been payable under section 19 if the incapacity referred to in that section had continued throughout the period of the program; or

(b) if the employee is undertaking a part-time program - compensation is payable to the employee of such amount per week as the relevant authority determines, being an amount not less than the amount per week of the compensation that, but for this subsection, would have been payable to the employee under this Act and not greater than the amount per week of the compensation that would have been payable under paragraph (a) if the employee had been undertaking a full-time program.

He explained that one of his objectives in pursuing the current applications before the Tribunal was to seek a higher amount of incapacity payments for the relevant period, paid pursuant to subs 37(5), rather than s 20. Indeed, as the initial hearing progressed, I understood Mr Cook to indicate that this was, in effect, the main purpose which he now saw being served by the current applications remaining on foot, and he subsequently confirmed this in the context of the resumed hearing. He accepted that there was limited utility in the Tribunal reviewing historical plans, particularly if he had a right to seek review of the plan which expired in February and could ask the Tribunal to review the content and duration of that plan. However, his submissions appeared to proceed on the basis that he may be able to establish an additional entitlement to incapacity payments under subs 37(5), having regard to time he had spent in rehabilitation activities, including self-employment. His argument appeared to be that subs 37(5) allowed time spent in rehabilitation activities to be treated as 'employment', potentially leading to the application of a higher adjustment percentage, and higher or additional incapacity payments.

1. In relation to this last issue, Mr MacGregor contended that the Tribunal had no jurisdiction to review the question of the appropriate level of incapacity payments, whether pursuant to s 20 or subs 37(5), as there was no reviewable decision before the Tribunal relating to those issues. He further contended that Mr Cook's submissions on this issue were incorrect and misconceived, since even if subs 37(5) applied to his circumstances, it would not lead to him being paid any higher amount by way of incapacity payments.

1. As the possibility of payments being made under subs 37(5) is in effect the main reason for Mr Cook seeking to maintain these applications, I will address this issue first.
2. Having carefully considered whether this issue in effect lends substance to one or more of the applications such that they should not be dismissed, I have ultimately concluded that it does not. There are several reasons for that conclusion, which I will set out in order of their importance:
   • (a) I am satisfied that the Tribunal clearly would not have jurisdiction in the context of any of these three applications to consider whether incapacity payments should be made to Mr Cook under subs 37(5). That is because, as Mr MacGregor has pointed out, throughout the relevant period Comcare made separate determinations with respect to Mr Cook's entitlement to incapacity payments, under s 20 of the SRC Act. I accept Mr MacGregor's submission that in order to seek incapacity payments under subs 37(5), Mr Cook needed to either make a primary claim for those payments, or seek reconsideration of the incapacity determinations made under s 20, on the basis that he was entitled to a different or additional amount under subs 37(5).
   • (b) I further accept Mr MacGregor's contention that there is no foundation in the Act for a conclusion that subs 37(5) provides for additional incapacity payments to be made over and above those payable under s 20. Subsection 37(5) provides an alternative basis for the calculation of incapacity payments, where ss 19 or 31 would otherwise apply. It follows that if subs 37(5) could also be read as mandating a mechanism for calculating incapacity payments during the currency of a rehabilitation program where s 20 would otherwise apply, then subs 37(5) would dis-apply s 20, and incapacity payments during the currency of the program would be calculated under subs 37(5).
   • (c) However, as pointed out by the Tribunal in Re Daff and Comcare[2], subs 37(5) applies only to an employee who would otherwise be entitled to compensation under ss 19 or 31. It does not apply to an employee such as Mr Cook whose incapacity payments would otherwise be calculated under s 20.
3. I acknowledge that in his correspondence with the relevant delegates in the context of the rehabilitation programs, particularly in application 2015/4149, Mr Cook made reference to subs 37(5). However, in circumstances where separate determinations had been made with respect to incapacity entitlements, those references were clearly not sufficient in my view to amount to a request for reconsideration of those determinations, or bring the subs 37(5) issue before any of the delegates who were reconsidering his rehabilitation programs, where the primary determinations did not in any way address the issue of incapacity payments. If Mr Cook wanted the incapacity determinations reconsidered, he needed to clearly identify which determinations he sought reconsideration of, the periods to which his request related and the reasons for this request/s. Alternatively, he needed to make a primary claim for payments under subs 37(5).
4. I also acknowledge that the terms of subs 37(5)(b) are somewhat unclear, and appear to suggest the possibility of a degree of discretion in determining the amount of incapacity payments. However, for the reasons I have given, I am satisfied in any event that the question of any entitlement under subs 37(5) clearly does not arise in any of these applications.
5. Having reached those conclusions with respect to subs 37(5), that still leaves the question of whether any other purpose is served by any of the three applications remaining on foot.
6. Relevantly to that issue, I note that subsequent to the hearing, on 24 March 2016, Mr Cook lodged a further application for review (2016/1492). That application seeks review of a decision of 8 February 2016, which affirmed a determination of 20 November 2015, determining a new rehabilitation program with an end date of 29 February 2016. In the context of that application, it appears to me that the Tribunal has jurisdiction to consider whether the plan should have been or should be extended, and to also consider the content of that plan and whether this should be changed. I note Mr MacGregor accepted those propositions and also accepted that the new application has utility and therefore is not liable to dismissal pursuant to s 42B.
7. In addition, particularly in light of the existence of that later rehabilitation program, which clearly determines the content and duration of the plan after 30 November 2015, I am satisfied that the Tribunal's jurisdiction in the context of the three applications before me is limited to examining the questions of the content and duration of the relevant rehabilitation programs between the dates of 5 May 2015 and 30 November 2015.[3] Given that Mr Cook is now employed and the earlier rehabilitation programs have in any event been overtaken by the more recent plan, I have also concluded that no purpose would be served by any of those applications proceeding to a final hearing.
8. In reaching that conclusion, I have also had regard to the fact that the existence and content of each of the relevant plans has no relevant impact or potential impact on Mr Cook's entitlements. As I understand the position, each of the plans was fully complied with and so there is no question of any non-compliance action being taken. Nor does it appear to me that the content of the plans, or even their duration were this to be changed, has any potential to affect any retrospective consideration of Mr Cook's incapacity entitlements should this occur.
9. To the extent that the content of the earlier plans had any bearing on the content of later plans, I consider that this issue can be adequately addressed by the Tribunal in the context of reviewing the most recent plan, noting that in any event Mr Cook's circumstances have completely changed since the earlier plans were formulated and he is now working full-time. In these circumstances, I see no benefit in the Tribunal having the previous plans before it in the context of considering the appropriateness and proper duration of the most recent plan.
10. For completeness, I am also not persuaded there is a tenable argument available to Mr Cook that the existence of the relevant plans is having any ongoing adverse effect on his health, such that one or more of the plans should be varied for that reason, despite any variation serving no practical purpose.[4]
11. For these reasons, I have ultimately concluded that there is no practical purpose served by any of the three applications currently before me remaining on foot, and the applications are therefore "frivolous" (in the technical sense of that word) and "misconceived" within the meaning of s 42B of the AAT Act, have no reasonable prospect of success, and should be dismissed. For completeness, I note that should Mr Cook wish to pursue the subs 37(5) issue notwithstanding my observations as to the application of the provision to him, it would be open to him to lodge a claim for such payments, or request an extension of time in which to seek reconsideration of the relevant incapacity determinations.
12. I note that Mr Cook's subsequent application, 2016/1492, is not affected by this decision and will remain on foot. However, my formal decision with respect to these three applications is that the applications are dismissed, pursuant to s 42B of the AAT Act.

1. Pursuant to subs 42B(1) of the AAT Act, the Tribunal dismisses the within applications for review.

I certify that the preceding 29 (twenty -nine) paragraphs are a true copy of the reasons for the decision herein of Deputy President K Bean

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[2] Re Daff and Comcare [2010] AATA 732.

[3] See Re Griffiths and Telstra Corporation Limited [2013] AATA 695.

[4] See Re Fogarty and Comcare [2007] AATA 1299.