Allan and Comcare

[2008] AATA 697

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 697

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/5330  

GENERAL ADMINISTRATIVE DIVISION		)
Re		DONNA ALLAN

Applicant

And   COMCARE

Respondent

DECISION

Tribunal Deputy President P E Hack SC
Associate Professor J B Morley RFD, Member

Date11 August 2008  

PlaceBrisbane

Decision The Tribunal:
(a) sets aside the decision under review;
(b) orders the respondent to pay the applicant’s costs of and incidental to the application to be taxed if not agreed.  

...............Signed................

Deputy President

CATCHWORDS

COMPENSATION – failure to attend a rehabilitation programme – question of whether applicant had a reasonable excuse for failing to attend – applicant’s state of mind and state of knowledge were that she was physically unwell and had been told by her treating medical practitioner she was unfit to attend – excuse found to be reasonable – decision under review set aside

Safety, Rehabilitation and Compensation Act 1988 (Cth) – s 37

Pascoe v Australian Postal Corporation (2004) 77 ALD 464

Telstra Corporation Ltd v Administrative Appeals Tribunal (2003) 37 AAR 40

REASONS FOR DECISION

11 August 2008	Deputy President P E Hack SC
Associate Professor J B Morley RFD, Member

Introduction

1.The applicant, Ms Donna Allan, seeks a review of the determination by the respondent, Comcare, made on 21 March 2007 and affirmed on reconsideration on 30 August 2007, that Ms Allan had refused or failed to undertake a rehabilitation programme. The consequence of that determination was that Ms Allan’s entitlement to compensation pursuant to the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act) was suspended by operation of s 37 of that Act.

Factual background

2.The background to the matter is not in dispute. Ms Allen was, at all material times, an employee of the Commonwealth. In February 2006 Comcare accepted liability to pay compensation to Ms Allan for a condition described as “adjustment disorder with mixed anxiety and depressed mood”. The date of injury was taken to be 14 October 2004, that being the date of the first medical treatment for the condition[1].

[1] See s 7(4), SRC Act.

3.In October 2004 Ms Allan was employed by the Commonwealth within the Department of Agriculture, Fisheries and Forestry. In June 2006 that Department put in place the processes for an assessment of Ms Allan’s capability of undertaking a rehabilitation programme[2]. That assessment was undertaken by a psychologist in the employ of Strive Occupational Rehabilitation Pty Ltd, Ms Kasrynne Huolohan.

[2] See s 36, SRC Act.

4.Dr Gary Larder is a consultant psychiatrist. Dr Larder has been treating Ms Allan since March 2005. In July 2006 he expressed the opinion that Ms Allan was capable “from a medical perspective” of returning to work in “suitable duties” for 20 to 25 hours per week. Following receipt of that certificate from Dr Larder, the Department, by its rehabilitation adviser Ms Kay Dreyer, wrote to Ms Allan on 26 July 2006 requiring her to commence work at the Australian Quarantine Inspection Service on 1 August 2006.

5.This placement did not eventuate. On 27 July 2006 Dr Larder wrote to Ms Dreyer expressing his opinion that Ms Allan was “not psychiatrically capable of commencing the duties on 1.8.06”. He suggested that a conference of relevant parties be held. That conference took place on 11 August 2006. It involved Ms Allan, Dr Larder, Ms Dreyer, Ms Huolohan and another employee from the Department.

6.Subsequently, by letter dated 15 August 2006, Dr Larder expressed the opinion that Ms Allan was suffering from a delusional disorder (paranoid subtype) and that he could not support a return to work/rehabilitation programme.

7.In a subsequent report dated 11 September 2006 Dr Larder expressed his opinion that the new condition was linked to Ms Allan’s employment with the Commonwealth.

8.In December 2006 the Department commissioned Dr Vladan Ljubisavljevic, a consultant psychiatrist, to assess Ms Allan’s condition. Dr Ljubisavljevic saw Ms Allan on 11 January 2007 and in a report dated 25 January 2007 expressed the opinion that Ms Allan was medically fit to participate in a rehabilitation programme outside the Commonwealth Government. He suggested that the rehabilitation provider to be engaged was one independent of both the Commonwealth and Queensland Governments.

9.Having received that report Ms Dreyer wrote to Ms Allan by letter dated 7 February 2007 in which she advised of having determined that Ms Allan should commence a formal rehabilitation programme with a commencement date of 14 February 2007. Ms Allan was directed to attend a meeting at the premises of Strive Occupational Rehabilitation with Ms Huolohan and Ms Dreyer at 11am on 14 February 2007. The letter continued:

“The purpose of this meeting will be to –

·        Discuss Dr Ljubisavjevic’s [sic] recommendations;

·        The rehabilitation process;

·        The type of duties you would consider suitable for a work trial;

·        Implement a formal RTWP.”

10.Dr Larder was informed of the determination that had been made by a letter of 8 February 2007.

11.On 13 February 2007 Ms Allan attended upon Dr Larder. In a report of that date he advised:

“She has again developed a reactive state of anxiety, tension, agitation, emotionality and distress pending a meeting planned for 14.2.07. I therefore do NOT support her attending the meeting (in the interests of her health). I believe we need to work together to find a less challenging way forward for her.”

12.On 14 February 2007 Ms Dreyer travelled to Brisbane from Canberra and became aware of the contents of Dr Larder’s report of the previous day a little before 11am. At around 11:10am Ms Dreyer was able to speak to Dr Larder and, according to her note of her conversation, told him that she “didn’t agree with what he was saying in regard to [Ms Allan] not being able to attend the meeting.”

13.Ms Allan did not attend the meeting and, as a consequence, a determination was made on 21 March 2007 that Ms Allan had “refused or failed, to undertake the rehabilitation program provided for [her] on 14 February 2007 …” We should note in passing that the Department’s letter of 23 February 2007 to Ms Allan directed that she either arrange to meet Ms Dreyer and Ms Huolohan (although no date for this meeting was specified) or provide any reasons that she might have for refusing or failing to attend. Despite that second direction the case for Comcare is that the refusal or failure in issue here was that constituted by the non-attendance on 14 February 2007.

Legislative scheme

14.It is sufficient for present purposes to note that s 37(1) of the SRC Act permits a rehabilitation authority (and the Department is such an authority) to make a determination that an employee should undertake a rehabilitation programme. Section 37(3) sets out the matters that a rehabilitation authority is obliged to have regard to but those matters are not here relevant. Section 37(7) is in these terms:

“Where an employee refuses or fails, without reasonable excuse, to undertake a rehabilitation program provided for the employee under this section, 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 employee begins to undertake the program.”

Issues for decision

15.Despite the solicitors for Ms Allan earlier indicating an intention to argue the proposition that the rehabilitation programme was not a valid rehabilitation programme, counsel for Ms Allan, Ms McClymont, expressly abandoned that submission and it is unnecessary to consider the matter further beyond observing that it appears to be contrary to the holding of the Full Court of the Federal Court in Pascoe v Australian Postal Corporation[3]. The sole issue for determination is whether Ms Allan had a reasonable excuse for her failure to attend the meeting on 14 February 2007.

[3](2004) 77 ALD 464, 469 [21]; but cf. Re Ranasinghe and Australian Postal Corporation [2008] AATA 66.

16.Our task, adopting the words of Pascoe, is to evaluate the reasonableness of any excuse presented to explain Ms Allan’s failure to undertake the programme devised for her; it is not our task to focus on the reasonableness of the programme itself.

Was there a reasonable excuse?

17.A determination about the reasonableness of Ms Allan’s excuse requires a focus upon her state of mind and state of knowledge at the time of the failure. Ms Allan’s evidence was that when she received the letter of 7 February 2007 she was confused because Dr Larder had certified her as being unfit up until 31 March 2007. The letter caused her to become extremely stressed, anxious, concerned and fretting. She had the shakes and could not think clearly. She arranged to see Dr Larder on 13 February 2007. He told her that she was not fit to attend the meeting and gave her a medical certificate to that effect. As a consequence of the opinion expressed to her by her treating practitioner and her subjective feelings of being unwell she did not feel capable of attending the meeting on 14 February 2007.

18.Necessarily, we approach Ms Allan’s evidence with some degree of caution given the diagnosis of delusional disorder, but despite that caution we

consider that we ought accept Ms Allan’s evidence given that it was supported in material respects by that of Dr Larder. In a report of 12 May 2008 Dr Larder explained that, having seen Ms Allan on 8 January 2007, 23 January 2007 and 13 February 2007, he:

“formed the view that she was suffering from a severe mental illness that precluded her from planning, formulating, or participating in negotiations with rehabilitation providers to commence a formal rehabilitation program at any time in February 2007 [and probably not in March 2007].”

Dr Larder agreed that he may well have suggested that Ms Allan could have attended with a support person. He was not able to recall the detail of the conversation that he subsequently had with Ms Dreyer shortly after 11am on 14 February 2007.

19.Ms Dreyer’s notes of her dealings with Dr Larder on that day record the following:

“Dr Larder stated that Donna had come to see him on various occasions (noted in his fax 8 Jan, 23 Jan and 13 Feb) and each time he observed that she was a mess, distressed and carried on with various symptoms. He could see a deterioration in her appearance and condition.

Dr Larder went on to say that Donna stated she wouldn’t attend the meeting without a support person. Dr Larder stated he told her to go and get one and go to the meeting. He said that Donna commented that he was her only support. Dr Larder informed her that he couldn’t leave his patients and attend the meeting with her.”

20.Ms Allan was not clear in her recollection of whether Dr Larder had suggested that she could attend the meeting with a support person but, as she said, she had no support other than Dr Larder and he could not leave his other patients and attend the meeting on 14 February 2007.

21.Having regard to the circumstances that Ms Allan was subjectively unwell and that her treating medical practitioner told her that she was medically unfit to attend the meeting on 14 February 2008, we readily conclude that she had a reasonable excuse for her failure to attend the meeting of 14 February 2007. It is not to the point that she may have been well enough to attend with a support person as she had none available to her.

22.We should deal shortly with one matter relied upon by Comcare, seemingly to demonstrate that Ms Allan’s excuse was not reasonable, and that is its reliance upon the reports of two psychiatrists, Dr Ljubisavljevic and Dr Philip Morris. Each of them expressed an opinion about Ms Allan’s capacity to attend the meeting of 14 February 2007 to the contrary of that expressed by Dr Larder. We need not decide which of the competing views ought be preferred. It is enough for us to be satisfied that Dr Larder conveyed his opinion to Ms Allan and there is nothing about the circumstances that would make her reliance upon it anything other than reasonable. Were we to make a determination that the views of Dr Ljubisavljevic and Dr Morris ought be preferred to that of Dr Larder we would be falling in to the same error as that identified in Telstra Corporation Ltd v Administrative Appeals Tribunal[4] where the Tribunal considered, wrongly as Kiefel J held, whether it was reasonable for Comcare to require a further medical examination rather than whether the employee had a reasonable excuse for not attending that examination.

[4] (2003) 37 AAR 40.

23.It follows that we would set aside the decision under review. Comcare should pay Ms Allan’s costs, of and incidental to the application, to be taxed if not agreed.

I certify that the 23 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC and Associate Professor J B Morley RFD, Member

Signed:         ......................Signed................................................
  Jacqueline Woods, Associate

Date of Hearing  18 July 2008
Date of Decision  11 August 2008
Counsel for the Applicant         Ms J McClymont
Solicitor for the Applicant          Slater and Gordon Lawyers
Counsel for the Respondent     Mr C Clark
Solicitor for the Respondent     Sparke Helmore Lawyers