Hardin v Comcare Australia

This appeal to this Court under the Administrative Appeals Tribunal Act 1975 (Cth), s44 against a decision of the Tribunal raises what in the event has proved to be a very narrow question of construction of provisions of the Safety Rehabilitation and Compensation Act 1988 (Cth) ("the SRC Act"). To place that question in its setting it is appropriate to commence with a short chronology of events leading to the Tribunal's decision. Background Events In July 1990 the respondent, Mr Chang, who was then working as an economist in the Industry Commission, made a claim for compensation under the SRC Act for repetitive strain injury ("RSI"). In the same month a formal rehabilitation program commenced. On 19 September Comcare accepted liability for the condition. In early 1992 Mr Chang applied for studies assistance and leave to undertake a Master of Commerce course at the University of New South Wales. He commenced that course on 2 March 1992 and later in March he was granted study leave without pay. The rehabilitation program he commenced in 1990 with a Mr Beswick, a physiotherapist, terminated on 31 March 1992. On 17 July, while undertaking his university course, Mr Chang sought payment of compensation for RSI for the anticipated duration of that course. That claim was disallowed by Comcare on 19 August 1992 as was a reconsideration of it on 25 June 1993. The rejection of this claim was one of the two matters of appeal to the Tribunal. On 1 September 1992 Mr Chang requested the Industry Commission to arrange an assessment under s36 of the SRC Act of his capability of undertaking a rehabilitation program, his university course being the program he envisaged for himself. The Industry Commission declined this request on the basis that he was not incapacitated for work. A review by Comcare of that refusal was sought in October 1992. It was rejected on 24 June 1993. This rejection was the second of the two matters of appeal to the Tribunal. The Tribunal, in its decision, concluded (1) that Mr Chang was "incapacitated for pre-injury work" for the period he claimed and Comcare was liable for this; and (2) in relation to the refusal to arrange an assessment of capability under the SRC Act, s36, it set aside Comcare's decision of 24 June 1993 and remitted the matter to Comcare for reconsideration - "with the direction that the Master of Commerce course undertaken by the Applicant in 1992 and semester 1 of 1993 be treated as part of the rehabilitation program undertaken by him to address his RSI condition." The Tribunal's reasons do not illuminate how that direction was one open to it to give, given the nature of the decision it was reviewing. I would note in passing that, in its reasons (para 77), the direction appears to have been given to the Industry Commission. The appeal to this Court is limited to a challenge to the Tribunal's decision and direction on the rehabilitation matter. Given the course of this appeal, it is unnecessary to set out the various grounds raised. It can only be said that, despite the apparent grounds of decision, the respondent has sought only to uphold the decision on a very particular basis. The practical effect of this is that there is, in substance, only one significant matter in dispute between the parties. It is this. If the s36 "assessment of ... capability of undertaking a rehabilitation program" is now to occur, is Mr Chang to be assessed as if the assessment was being made in 1992 and in light of his then condition? Or is it to be made of him now and in light of his present condition? The practical significance of the difference would seem to be this. If a '1992 assessment' was made and it was favourable to Mr Chang his university course could, under the SRC Act s37, be constituted the rehabilitation program he then should - and did - undertake. Presumably, if this historical reconstruction is permissible, Comcare will have been made liable under s37(4) for the cost of Mr Chang's university course (ie for his rehabilitation program). The Statutory Setting To appreciate the significance both of the direction given by the Tribunal and of the attack made on it, it is necessary to refer to several of the provisions of Part III of the SRC Act. I should preface what I have to say about these provisions with the comments (a) that, for present purposes, the reference in them to the "rehabilitation authority" is a reference to the head of the Industry Commission; and (b) that an "approved program provider" is, by virtue of s34(1) of the Act, a provider of rehabilitation programs who, for the purposes of the SRC Act, has been so approved in writing by Comcare. I would add that it has not been suggested to me that the University of New South Wales, then or now, was or is an approved program provider. Insofar as presently relevant s36 of the Act provides (inter alia): "Assessment of capability of undertaking rehabilitation program 36. (1) Where an employee suffers an injury resulting in an incapacity for work or an impairment, the rehabilitation authority may at any time, and shall on the written request of the employee, arrange for the assessment of the employee's capability of undertaking a rehabilitation program. (2) An assessment shall be made by: (a) a legally qualified medical practitioner nominated by the rehabilitation authority; (b) a suitably qualified person (other than a medical practitioner) nominated by the rehabilitation authority; or (c) a panel comprising such legally qualified medical practitioners or other suitably qualified persons (or both) as are nominated by the rehabilitation authority. ... (8) Where an examination is carried out, the person or persons who carried out the examination shall give to the rehabilitation authority a written assessment of the employee's capability of undertaking a rehabilitation program, specifying, where appropriate, the kind of program which he or she is capable of undertaking and containing any other information relating to the provision of a rehabilitation program for the employee that the rehabilitation authority may require."