Alan Otley and Asciano Services Pty Ltd
[2013] AATA 18
[2013] AATA 18
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/2330
Re
Alan Otley
APPLICANT
And
Asciano Services Pty Ltd
RESPONDENT
DECISION
Tribunal Deputy President S D Hotop
Date 16 January 2013 Place Perth The decision under review is set aside and, in substitution therefor, it is decided that the applicant’s rights to compensation under the Safety, Rehabilitationand CompensationAct 1988 (Cth) (“SRC Act”) are not suspended for the period from 5 April 2012 to 30 April 2012, and that compensation is payable to the applicant in accordance with the SRC Act in respect of his compensable injury, namely, “muscle strain to lower back” sustained on 9 September 2008, for the whole of the period from 5 April 2012 to 30 April 2012.
Application may be made to the Tribunal in relation to the costs of these proceedings within 14 days of the date of this decision. In the event that no such application is made by that date, the Tribunal orders, pursuant to s 67(8) of the SRC Act, that the costs of these proceedings incurred by the applicant be paid by the respondent in accordance with Section 6.8 of the Tribunal’s Guide to the Workers’ Compensation Jurisdiction.
.....................[sgd]...................................
S D Hotop, Deputy President
CATCHWORDS
COMPENSATION – employee of licensed corporation – applicant sustained compensable injury in September 2008 – rehabilitation – respondent arranged for assessment of applicant’s capability of undertaking rehabilitation program – respondent required employee to undergo examination for purpose of assessment – examination arranged – applicant requested deferral of examination on legal advice – applicant did not attend examination – applicant’s compensation suspended – applicant had reasonable excuse for failing to undergo examination – decision under review set aside
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth), s 4(1) and s 36
REASONS FOR DECISION
Deputy President S D Hotop
16 January 2013
Introduction
Alan Thomas Otley (“the applicant”) has applied to the Tribunal for review of a “reviewable decision” made under s 62 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“SRC Act”) on behalf of Asciano Services Pty Ltd (“the respondent”) on 22 May 2012. That reviewable decision affirmed a determination made under s 36(4) of the SRC Act on 5 April 2012 that the applicant had failed, without reasonable excuse, to undergo an examination by Advanced Personnel Management on 2 April 2012 and that, accordingly, his rights to compensation under that Act were suspended until the examination took place.
The Evidence
The evidence before the Tribunal comprised:
·the “T Documents” (T1-T172, pp1-355) lodged by the respondent in accordance with s37 of the Administrative Appeals Tribunal Act 1975 (Cth);
·Exhibits A1 and A2 tendered by the applicant;
·Exhibits R1-R4 tendered by the respondent; and
·the oral evidence of the applicant and of Jason Grima.
The Factual Background
The following relevant backgrounds facts, which the Tribunal understands are not in dispute, are found by the Tribunal on the basis of the T Documents and Exhibit A1.
On 24 September 2008, the applicant, who was then employed by the respondent, made a claim for compensation under the SRC Act in respect of “pain lower back” which he claimed to have suffered as a result of “lifting compressor to adjust locking hitch” while working at his usual workplace on 9 September 2008. (T3)
By determination dated 25 September 2008 the respondent accepted liability under s 14(1) of the SRC Act to pay compensation to the applicant in respect of “muscle strain to lower back” sustained on 9 September 2008. (T14)
On 24 February 2012 the respondent terminated the applicant’s employment “on medical grounds”, with effect from that date. (T141)
On 1 March 2012 Jason Grima, Workers’ Compensation Claims Administrator with the respondent, referred the applicant to Advanced Personnel Management for the purpose of, inter alia, a vocational rehabilitation assessment. (T142)
By letter dated 27 March 2012 Jason Grima notified the applicant as follows:
“…
Section 36(1) Assessment
andSection 36(3) Examination of Capability of Undertaking Rehabilitation Program
Determination
Pursuant to Section 36(1) and Section 36(3) of the Act, I determine that Mr Alan Otley is required to attend an appointment for the purpose of undertaking an assessment and examination.
Advance (sic) Personnel Management, who is a suitably qualified person under Section 36(2) of the Act, will contact you shortly to arrange a time to meet.
Reasons for Determination
The purpose of this assessment and examination is to evaluate your capability to participate in a vocational assessment to assist with the development of a return to work/rehabilitation program.
You will be provided with a report following this assessment/examination.
In accordance with Section 36(5) of the Act, Asciano will pay the costs of this examination and in addition you are entitled to reimbursement of expenses reasonably incurred, in order to attend this appointment.
Rights of Reconsideration
If you are dissatisfied with this determination you may request a review of the determination in writing under Section 62 of the Act, which shall set out the reasons for the request and such a request shall be given within thirty (30) days of receipt of this determination. Your request for reconsideration should be directed to Asciano, Injury Management Unit, Locked Bag 90, Parramatta, NSW, 2124.
Other Information
A Notice of Effects of Non Compliance is set out below, explaining possible consequences should you fail to comply. …” (original emphasis) (T149, pp 308-309)
By letter dated 27 March 2012 Mr Grima wrote to the applicant’s solicitors as follows:
“…
Reference is made to your client’s claim for workers compensation and acknowledge (sic) your correspondence dated 15 March 2012.
We confirm that your client requested the rehabilitation services of Dynamic Focus to assist with his return to work and job seeking.
Upon review it was identified that Dynamic Focus are not Comcare Accredited rehabilitation providers under the Safety, Rehabilitation & Compensation Act, 1988 and as such are unable to provide rehabilitation services to Mr Otley.
Please find enclosed copy of correspondence forwarded to Mr Otley today for your perusal. We confirm that Advance (sic) Personnel Management will make arrangements for a suitable date and time for Mr Otley to attend for a Section 36 examination under the Safety, Rehabilitation & Compensation Act, 1988.
…” (T150)
On 27 March 2012 Mr Grima sent an email to Jennifer Veldman of Advanced Personnel Management as follows:
“…
Upon discussion with Mr Otley the rehabilitation provider of (sic) Dynamic Focus are not Comcare Accredited and as such he is unable to utilise their services.
Therefore, please find enclosed copy of correspondence sent to Mr Otley today for your perusal. We would ask you to proceed with arranging an appointment date and time for Mr Otley to attend for a Vocational Assessment. Also keep in contact should Mr Otley fail to attend the vocational assessment.
I will be in Perth from Monday 07/05/2012 until 09/05/2012 and was hoping to arrange a case conference with you & Mr Otley with direction towards return to work and job seeking.
…”
On 30 March 2012 Ms Veldman replied by email to Mr Grima’s email as follows:
“…
I have contacted Mr Otley and he was happy to book an appointment for 2 April 2012 at 2 pm.
Also, I am able to meet with you on 7 May 2012 to discuss the case.
…” (T161, p 329)
By facsimile dated 30 March 2012 the applicant’s solicitors wrote to Mr Grima as follows:
“…
We refer to your letter of 27 March 2012.
Given Dynamic Focus are not a Comcare Accredited rehabilitation provider, we have now provided our client with a list of those relevant providers. We confirm that our client is to consider his position with respect to which provider he would like to appoint and we will revert to you in response as soon as possible.
We do however, note your letter to our client of 27 March 2012 and note you have engaged Advance (sic) Personnel Management to undertake an assessment pursuant to section 36. We ask that you refrain from doing so at this point until we have obtained our client’s instructions as set out above.
We look forward to hearing from you.
…” (T151)
On 30 March 2012 (at 2.37pm) Ms Veldman sent an email to Mr Grima as follows:
“…
I just received a phone call from Mr Otley. He reported that he received your letter referring to section 36. He reported that his solicitor has sent you a fax applying for a suspension of the assessment. Mr Otley informed me that he will not be attending the appointment set for the 2 April. Mr Otley stated that he will be happy for me to call him once this matter has been settled to rebook the appointment.
Could you please let me know when it is appropriate to reschedule the appointment.
…”
On 30 March 2012 (at 2.53pm) Mr Grima replied by email to Ms Veldman’s email as follows:
“…
Thanks for the update. I have yet to receive a fax from his solicitor and will await their fax.
I will advise you of the outcome.
…” (Exhibit A1)
By facsimile dated 3 April 2012 the applicant’s solicitors wrote to Mr Grima as follows:
“…
We refer to our facsimile of 30 March 2012.
Having regard to the list of Comcare Accredited rehabilitation providers, we are advised by our client that his preferred provider is that of Fresh Start Injury Management.
We would ask that instead of engaging Advanced Personnel Management to carry out the section 36(1) assessment, you make arrangements for Fresh Start Injury Management to do so.
…” (T153)
On 4 April 2012 Mr Grima wrote a memorandum to Denise Fishlock, Workers Compensation Manager with the respondent, setting out the events from 1 March 2012 leading up to the applicant’s failure to attend the scheduled appointment with Advanced Personnel Management on 2 April 2012 and seeking her approval to suspend the applicant’s compensation benefits on the ground of his failure to attend that appointment and undergo a vocational assessment and examination by Advanced Personnel Management. On 4 April 2012 Ms Fishlock granted the approval sought by Mr Grima. (T154)
By letter dated 5 April 2012 Mr Grima notified the applicant as follows:
“…
Advanced Personnel Management has confirmed you did not attend the Section 36 examination for a vocational assessment.
Having reviewed all the evidence it has been identified that you have failed to undergo the examination with Advanced Personnel Management and as such your rights to compensation will be suspended until the examination takes place.
Therefore, I determine that Asciano Service (sic) Pty Ltd is not liable to pay compensation under Section 36(4) of the Safety, Rehabilitation and Compensation Act 1988 for your claimed injury until the Section 36 assessment and examination has taken place.
Further as benefits are suspended under Section 36(4) of the Safety, Rehabilitation Act, (sic) 1988 compensation is not payable in respect to the period of the suspension. However medical treatment and expenses will continue to be reimbursed.
…” (original emphasis) (T156)
By letter dated 27 April 2012 Mr Grima notified the applicant as follows:
“…
Section 36(1) Assessment
and
Section 36(3) Examination of Capability of Undertaking Rehabilitation Program
Determination
Pursuant to Section 36(1) and Section 36(3) of the Act, I determine that Mr Alan Otley is required to attend an appointment for the purpose of undertaking an assessment and examination.
Advance (sic) Personnel Management, who is a suitably qualified person under Section 36(2) of the Act, have made arrangements with you today to attend for assessment and examination on Monday 30 April 2012 at 2:00pm.
…” (T163)
On 30 April 2012 Ms Veldman sent an email to Mr Grima informing him that the applicant had attended the appointment on that day. (T164)
On 22 May 2012 Ms Fishlock, on behalf of the respondent, made a reviewable decision under s 62 of the SRC Act affirming Mr Grima’s determination of 5 April 2012 (set out in paragraph 15 above). Ms Fishlock noted that the effect of that determination was that compensation was not payable to the applicant from 5 April 2012 until 30 April 2012 when his “benefits were recommenced” following his attendance at the appointment with Advanced Personnel Management on that date. (T167)
On 8 June 2012 the applicant lodged with the Tribunal an application for review of the reviewable decision of 22 May 2012. (T1)
The Relevant Legislation
Section 36 of the SRC Act provides:
“36 Assessment of capability of undertaking rehabilitation program
(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
(b)a panel comprising such legally qualified medical practitioners or other suitably qualified persons (or both) as are nominated by the rehabilitation authority.
(3)The rehabilitation authority may require the employee to undergo an examination by the person or panel of persons making the assessment.
(4)Where an employee refuses or fails, without reasonable excuse, to undergo an examination in accordance with a requirement, or in any way obstructs such an examination, 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 examination takes place.
(5)The relevant authority shall pay the cost of conducting any examination of an employee and is liable to pay to the employee an amount equal to the amount of the expenditure reasonably incurred by the employee in making a necessary journey in connection with the examination or remaining, for the purpose of the examination, at a place to which the employee has made a journey for that purpose.
(6)In deciding questions arising under subsection (5), a relevant authority shall have regard to:
(a)the means of transport available to the employee for the journey;
(b)the route or routes by which the employee could have travelled; and
(c) the accommodation available to the employee.
(7)Where an employee’s right to compensation is suspended under subsection (4), compensation is not payable in respect of the period of the suspension.
(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.”
Section 4(1) of the SRC Act relevantly provides:
“4 Interpretation
(1)In this Act, unless the contrary intention appears:
…
licensed corporation means a corporation that is the holder of a licence that is in force under Part VIII.
…principal officer, in relation to a licensed corporation, means the principal executive officer of the corporation.
…rehabilitation authority, in relation to an employee, means:
(a)where the employee is employed by an exempt authority—Comcare; and
(b)where the employee is employed by a licensed authority—the principal officer of that authority; and
(ba)if the employee is employed by a licensed corporation—the principal officer of that corporation; and
(c)if the employee is employed by an Entity or a Commonwealth authority, other than an exempt authority—the principal officer of the Entity or the Commonwealth authority in which the employee is employed; and
(d)if the employee is a member of the Defence Force—the Chief of the Defence Force
…”
The Issue
The issue for the Tribunal’s determination is whether the applicant’s failure to attend the relevant appointment with Advanced Personnel Management on 2 April 2012 constituted a failure, “without reasonable excuse, to undergo an examination in accordance with a requirement”, within the meaning of s 36(4) of the SRC Act.
The Applicant’s Evidence
In his examination-in-chief the applicant gave evidence to the following effect:
·he received the letter from Mr Grima, dated 27 March 2012, notifying him that he was required to attend an appointment with Advanced Personnel Management (see paragraph 8 above), when it was delivered to his home “late in the afternoon” of 29 March 2012;
·after receiving the letter he telephoned his solicitor’s office but his solicitor was not available;
·at about 9 o’clock in the morning of 30 March 2012 he received a telephone call from Jennifer Veldman who wanted to make an appointment for him to attend for the purpose of a rehabilitation assessment and she “made the appointment for 2 April for 2 o’clock in the afternoon”;
·he received a telephone call from his solicitor “probably about lunchtime” on 30 March 2012 and he told his solicitor that he wanted some advice regarding Mr Grima’s letter, whereupon his solicitor told him to request a deferral of the appointment with Ms Veldman because he (the solicitor) was going to write a letter to the respondent about this matter;
·after he had finished talking with his solicitor, he telephoned Ms Veldman about deferring their appointment until his solicitor and the respondent “had been in contact”.
In cross-examination the applicant gave evidence to the following effect:
·in his telephone conversation with Ms Veldman in the morning of 30 March 2012 he agreed that their appointment would be on 2 April 2012 at 2.00 pm;
·he telephoned Ms Veldman later that day, after speaking with his solicitor, for the purpose of deferring that appointment;
·he then told Ms Veldman that he wanted “to defer any more meetings until after [his] lawyer and Asciano have made contact”;
·Ms Veldman did not indicate what her attitude was to that proposal — “it was the end of the conversation”;
·he did not inform Mr Grima that he would not be attending the appointment with Ms Veldman on 2 April — he expected that Ms Veldman would so inform Mr Grima and that his solicitor would be in contact with Mr Grima;
·he did not attend the appointment with Ms Veldman on 2 April 2012;
·there was no medical reason for his not attending that appointment.
In re-examination the applicant confirmed that the only reason he wanted to defer the 2 April appointment with Ms Veldman was so that his solicitor could discuss the matter with the respondent in the meantime. He said that, after he had spoken with Ms Veldman in the afternoon of 30 March 2012 about deferring the 2 April appointment, his understanding was that that appointment had been deferred and would not be going ahead.
The Evidence Of Jason Grima
Mr Grima confirmed that he had signed a witness statement, dated 24 October 2012, for the purpose of this proceeding. The contents of that witness statement are as follows:
“1. My full name is Jason Charles Grima.
2.I am a Workers’ Compensation Claims Administrator employed by Asciano Services Pty Ltd (Asciano).
3. I have held this position for approximately 15 months.
4.I am responsible for the day to day management of Alan Otley’s workers’ compensation claim.
5.On 24 February 2012, I received an email from Scott Curtis, Logistics Manager (T140).
6.The email attached a letter addressed to Mr Otley and dated 24 February 2012, which terminated his employment with Asciano on medical grounds (T141).
7.On 1 March 2012, I completed a Rehabilitation Referral Form, which I then faxed to Advanced Personnel Management (APM) (T142).
8.I requested that APM arrange a vocational assessment of Mr Otley to identify some suitable return to work goals for him.
9.On 8 March 2012, I received a call from Lisa Pearce from APM. She advised that Mr Otley’s vocational assessment had been scheduled to take place on 12 March 2012.
10. At 2pm that day, I received a phone call from Mr Otley.
11.Mr Otley told me that he had spoken to his solicitors, who had advised him that he had the right to choose his own rehabilitation provider.
12.I confirmed with Mr Otley that an initial assessment had already been scheduled with APM, and was to take place on Monday, 12 March 2012.
13.I advised Mr Otley that he was required to attend the appointment with APM on 12 March 2012.
14.Mr Otley said that he didn’t want to use APM and requested Dynamic Focus be his preferred rehabilitation provider.
15.I asked Mr Otley to supply details in writing as to his preferred provider and why he wished to change providers.
16.I did not receive any written response from Mr Otley.
17.Mr Otley did not attend his vocational assessment with APM on 12 March 2012.
18.On 22 March 2012 I called Mr Otley to let him know that Dynamic Focus was not Comcare accredited, and that Asciano could not engage them as his rehabilitation provider.
19.It is Asciano’s policy to only use rehabilitation providers who are Comcare accredited. These providers run rehabilitation programs which comply with the requirements of the Act.
20.I told Mr Otley that Asciano has a panel of 5 rehabilitation providers that it regularly uses, and it would be better if he could choose one of those.
21.Mr Otley asked me to contact his solicitor to discuss the issue further.
22.After I finished talking to Mr Otley, I called his solicitors, Chapmans Barristers and Solicitors (Chapmans) as he had asked me to do.
23.I was advised that the solicitor handling Mr Otley’s matter was unavailable, so I left a message for him to call me back.
24.Mr Otley’s solicitor has not returned my call.
25.On 23 March 2012, I received a letter from Chapmans, which was dated 15 March 2012 (T147).
26.Chapmans requested that I advise them of Asciano’s position in relation to Mr Otley choosing his own rehabilitation provider.
27.On 27 March 2012, I responded to the letter from Chapmans dated 15 March 2012 (T150).
28.In my letter, I confirmed that Dynamic Focus was not Comcare accredited and therefore could not provide Mr Otley’s rehabilitation services.
29.Also on 27 March 2012, I drafted a determination (T149) which found that Mr Otley was required to attend an appointment for the purposes of undertaking an assessment or examination, pursuant to section 36(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act).
30.The determination stated that Asciano had appointed APM as Mr Otley’s rehabilitation provider, and that a representative from APM’s office would contact him shortly to arrange a time for the appointment.
31.I then sent an email to Jennifer Veldman at APM asking her to proceed with the vocational assessment, and to contact Mr Otley to arrange a suitable date and time (T161).
32.On 30 March 2012, I received an email from Ms Veldman confirming that she had called Mr Otley and a vocational assessment had been arranged for 2 April 2012 (T161).
33.Shortly after receiving that email, I received another email from Ms Veldman, which said that the applicant had called back and advised that he would not be attending the appointment on 2 April 2012.
34.Mr Otley did not attend his appointment with APM on 2 April 2012.
35.I called Mr Otley on 3 April 2012, the day after he was meant to attend his appointment with APM.
36.Mr Otley confirmed that he had received my letter of 27 March 2012, informing him of the appointment.
37.Mr Otley told me that he didn’t attend his appointment with APM because he wanted to find a rehabilitation provider close to his home.
38.On 4 April 2012, I drafted a memo to my supervisor, Denise Fishlock (T154).
39.The memo outlined the key events which had occurred in the lead up to Mr Otley missing his appointment with APM on 2 April 2012.
40.On 5 April 2012, I received a letter from Chapmans dated 30 March 2012 (T151).
41.The letter stated that Mr Otley was considering which provider he would prefer to use, and asked that we postpone his assessment with APM.
42.Unfortunately, I did not receive the letter until after Mr Otley was meant to attend the appointment.
43.On 5 April 2012, I received a letter from Chapmans (T153).
44.The letter advised that Mr Otley had chosen to use Fresh Start Injury Management, and requested that I arrange for them to conduct Mr Otley’s vocational assessment.
45.On 5 April 2012, I drafted a determination (T156) which found that Mr Otley had failed to attend his examination with APM on 2 April 2012, and that his rights to compensation were therefore suspended until such time as he attended an examination.
46.On 27 April 2012, I received a letter from Chapmans dated 13 April 2012 (T158).
47.The letter requested a reconsideration of my determination of 5 April 2012.
48. On 27 April 2012, I wrote to Chapmans to confirm that Mr Otley’s entitlements would be reinstated once he had attended the appointment with APM.
49.Ms Veldman arranged another appointment with Mr Otley for 30 April 2012.
50.On 30 April 2012, I received an email from Ms Veldman confirming that Mr Otley had attended his appointment (T164).
51.On 9 May 2012, I arranged for Mr Otley’s entitlements to be reinstated from 30 April 2012.
52.On 22 May 2012, Ms Fishlock drafted a reviewable decision (T167) which affirmed my determination of 5 April 2012.” (Exhibit R1)
Mr Grima also gave oral evidence but it is unnecessary to refer in detail to that evidence in these reasons.
The Statement of Jennifer Veldman
The respondent tendered in evidence a signed witness statement of Jennifer Veldman, dated 24 October 2012 (Exhibit R3). Ms Veldman was not required by the applicant for cross-examination and she did not give oral evidence.
The contents of Ms Veldman’s witness statement are as follows:
“1. My full name is Jennifer Anne Veldman.
2. I am a provisional Psychologist.
3.I am employed as a Consultant for Advanced Personnel Management (APM).
4.I have held this position for approximately one year.
5.I was involved in Alan Otley’s rehabilitation program for the purpose of conducting his vocational assessment.
6.On 1 March 2012, APM received a completed Rehabilitation Referral Form, which was signed by Jason Grima of Asciano Services Pty Ltd (Asciano)(T142).
7.The Rehabilitation Referral Form is a standard form used to engage APM’s services.
8.On 2 March 2012, I telephoned Mr Otley to explain my role and arrange a date and time for him to attend a vocational assessment.
9.We agreed that 2.00pm on 12 March 2012 was suitable.
10.I sent a text message to Lisa Pearce of APM confirming that I had arranged Mr Otley’s appointment for 2.00pm on 12 March 2012.
11.On 8 March 2012, Lisa called Mr Grima to advise that Mr Otley’s vocational assessment was scheduled to take place on 12 March 2012.
12.Mr Otley did not attend his vocational assessment on 12 March 2012.
13.On 16 March 2012, Mr Otley called me to let me know that he had applied to change rehabilitation providers.
14.Later that day, I emailed Mr Grima to check whether any decision had been made in respect who (sic) would be conducting Mr Otley’s rehabilitation program (T161).
15.On 26 March 2012, I emailed Mr Grima again to query whether any decision had been made in respect of Mr Otley’s rehabilitation program (T161).
16.On 27 March 2012, I received an email from Mr Grima (T161).
17.Mr Grima advised that Dynamic Focus, the rehabilitation provider chosen by Mr Otley, was not Comcare accredited and could not conduct Mr Otley’s rehabilitation program.
18.Mr Grima requested that I proceed with arranging Mr Otley’s vocational assessment appointment.
19.He also asked that I contact him if Mr Otley failed to attend the appointment.
20.On 30 March 2012, I called Mr Otley to arrange a time and date for his vocational assessment.
21.We agreed that 2 April 2012 was suitable.
22.I sent an email to Mr Grima to confirm that Mr Otley was happy to attend an appointment on 2 April 2012.
23.Shortly after that, I received a call from Mr Otley.
24.Mr Otley confirmed that he had received a letter from Mr Grima telling him he had to attend a vocational assessment.
25.Mr Otley advised me that his solicitors had sent a fax to Mr Grima applying for a suspension of the assessment.
26.Mr Otley said he would not be attending the assessment on 2 April 2012.
27.I then sent a further email to Mr Grima to let him know that Mr Otley had changed his mind and was not going to attend the 2 April 2012 appointment.
28.On 2 April 2012, I received an email from Mr Grima which said that he had not yet received the fax that Mr Otley referred to in his telephone call to me on 30 March 2012.
29.Mr Otley did not attend his appointment on 2 April 2012.
30.On 27 April 2012, I received an email from Mr Grima requesting that I re-arrange Mr Otley’s appointment.
31.I contacted Mr Otley the same day and we agreed that 30 April 2012 was suitable.
32.Mr Otley attended the re-scheduled appointment on 30 April 2012.
33.As requested, I emailed Mr Grima to confirm Mr Otley’s attendance.”
Additional Evidence Tendered by the Respondent
The respondent also tendered in evidence an extract of case notes recorded by Ms Veldman and Lisa Pearce of Advanced Personnel Management in relation to the applicant in the period from 2 March 2012 to 14 May 2012 (Exhibit R4). Included in those notes is the following record by Ms Veldman of telephone conversations between her and the applicant on 30 March 2012:
“30/03/2012 15m Phone call with Mr Otley. Ms (sic) Otley agreed to attend a vocational assessment on 2 April 2012 at 2pm. JV”
“30/03/2012 15m Phone call received from Mr Otley. He reported that he received a letter from Mr Grima referring to section 36. He reported that his solicitor has sent Mr Grima a fax applying for a suspension of the assessment. Mr Otley informed me that he will not be attending the appointment set for the 2 April. Mr Otley stated that he will be happy for me to call him once this matter has been settled to rebook the appointment. JV”
Analysis
Section 36(3) of the SRC Act authorises a “rehabilitation authority” to “require” an employee to undergo an examination by the person or panel of persons making an assessment, pursuant to s 36(1), of the employee’s capability of undertaking a rehabilitation program.
The respondent is a “licensed corporation” (as defined in s 4(1) of the SRC Act). Accordingly, the “rehabilitation authority” (as defined in para (ba) of s 4(1)), for the purposes of s 36(3) of the SRC Act, in the present case is “the principal officer” of the respondent – that is, “the principal executive officer” of the respondent (see the definition of “principal officer, in relation to a licensed corporation” in s 4(1) of the SRC Act).
The relevant “requirement” for the applicant “to undergo an examination”, pursuant to s 36(3) of the SRC Act, was made by Jason Grima on 27 March 2012 (see paragraph 8 above). Mr Grima is plainly not “the principal executive officer” of the respondent and, accordingly, Mr Grima himself is not the “rehabilitation authority”, for the purposes of s 36(3) of the SRC Act, in the present case. It may be that Mr Grima has been appointed as a delegate of “the principal executive officer” of the respondent for the purposes of s 36(3) of the SRC Act but no instrument of such delegation is in evidence; nor is any other evidence of the existence of such a delegation before the Tribunal. The applicant, however, did not dispute Mr Grima’s authority to require him to undergo an examination pursuant to s 36(3) of the SRC Act and the Tribunal is prepared to proceed on the basis that Mr Grima was so authorised.
The critical issue in dispute between the parties is whether or not the applicant had a “reasonable excuse” for failing to undergo an examination in accordance with the requirement expressed in Mr Grima’s letter of 27 March 2012 (see paragraph 8 above).
As regards Mr Grima’s letter of 27 March 2012, the Tribunal notes that, although the requirement expressed in that letter was that the applicant “attend an appointment for the purpose of undertaking an assessment and examination” for the purposes of s 36 of the SRC Act, the letter did not itself specify the date of that appointment but, instead, stated that “Advance (sic) Personnel Management, who is a suitably qualified person under Section 36(2) of the Act, [would] contact [the applicant] shortly to arrange a time to meet”. Accordingly, the “requirement”, for the purposes of s 36(4) of the SRC Act, imposed by Mr Grima, pursuant to s 36(3) of the SRC Act, was merely that the applicant undergo an examination by Advanced Personnel Management at a time to be arranged between a representative of Advanced Personnel Management and the applicant.
There is no dispute that subsequently, in the morning of 30 March 2012, it was arranged between Ms Veldman of Advanced Personnel Management and the applicant that such examination would take place on 2 April 2012 at 2.00pm. There is also no dispute that the applicant failed to attend and undergo an examination at that time.
The Tribunal accepts the applicant’s evidence regarding his failing to undergo an examination for the purposes of s 36 of the SRC Act on 2 April 2012. In short, the applicant’s evidence was that, following a conversation with his solicitor in the early afternoon of 30 March 2012 regarding Mr Grima’s abovementioned letter of 27 March 2012, he telephoned Ms Veldman and, on instruction from his solicitor, informed her that he wished to defer the examination until after his solicitor had contacted the respondent about the matter and that he would not be attending on 2 April 2012, and that he understood that, as a result of that conversation with Ms Veldman, the examination would be deferred and not go ahead on 2 April 2012. On the basis of that evidence the Tribunal finds that:
·it was reasonable for the applicant to convey to Ms Veldman (in the afternoon of 30 March 2012) that he wished that the examination arranged between them (in the morning of 30 March 2012) for 2 April 2012 be postponed;
·it was reasonable for the applicant to believe, following his conversation with Ms Veldman in the afternoon of 30 March 2012 (in which Ms Veldman noted, without dissent or objection, that he wished to postpone the examination which they had earlier agreed would take place on 2 April 2012 and that he would not be attending that appointment), that that examination would be postponed and would not take place on that date.
The Tribunal notes that, in its opinion, it is clearly implicit in Ms Veldman’s record of that conversation (see paragraph 30 above) and in her email to Mr Grima, sent on 30 March 2012 at 2.37pm shortly after her telephone conversation with the applicant (see paragraph 12 above), that Ms Veldman was also of the understanding that the examination would not take place on 2 April 2012 as originally arranged and would have to be “rebooked” or “rescheduled”.
Having regard to the evidence and findings referred to in paragraph 37 above, the Tribunal is satisfied, and finds, that the applicant did have a reasonable excuse, for the purposes of s 36(4) of the SRC Act, for failing to undergo the examination which had originally been arranged between himself and Ms Veldman for 2 April 2012 at 2.00pm.
Conclusion
The Tribunal concludes, therefore, that the applicant did not refuse or fail, “without reasonable excuse, to undergo an examination in accordance with a requirement”, within the meaning of s 36(4) of the SRC Act, on 2 April 2012, and that, accordingly, his rights to compensation under the SRC Act were not liable to be suspended, pursuant to s 36(4) of the SRC Act, on that basis.
Decision
For the above reasons the decision under review is set aside and, in substitution therefor, it is decided that the applicant’s rights to compensation under the SRC Act are not suspended for the period from 5 April 2012 to 30 April 2012, and that compensation is payable to the applicant in accordance with the SRC Act in respect of his compensable injury, namely, “muscle strain to lower back” sustained on 9 September 2008, for the whole of the period from 5 April 2012 to 30 April 2012.
I certify that the preceding 40 (forty) paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop
...................[sgd B Mitchell].......................................
Administrative Assistant
Dated 16 January 2013
Date of hearing 11 December 2012 Representative of the Applicant Mr A Stewart
Solicitors for the Applicant Chapmans Representative of the Respondent Mr B Ablong Solicitors for the Respondent HBA Legal
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