AUSTON and CHUBB SECURITY SERVICES LIMITED

[2011] AATA 613

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 613

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/3095

GENERAL ADMINISTRATIVE DIVISION		)
Re		SCOTT AUSTON

Applicant

And CHUBB SECURITY SERVICES LIMITED

Respondent

DECISION

Tribunal Deputy President P E Hack SC

Date2 September 2011

PlaceBrisbane

Decision

1. The decision under review is set aside and a decision substituted that the applicant’s rights to compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) not be suspended for his failure or refusal to undertake a rehabilitation program.

2. The respondent is to pay the applicant’s costs of and incidental to the application, to be taxed if not agreed.

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

Deputy President

CATCHWORDS

COMPENSATION – suspension of compensation – rehabilitation program – whether reasonable excuse for failing to undertake rehabilitation program – applicant advised by medical practitioner of work capabilities – applicant reasonably believed excessive capabilities prescribed in rehabilitation program – decision under review set aside and substituted

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 37, 60, 61

Pascoe v Australian Postal Corporation [2004] FCAFC 4; (2004) 77 ALD 464

REASONS FOR DECISION

2 September 2011   Deputy President P E Hack SC    

1.The applicant, Mr Scott Auston, was and is employed by the respondent, Chubb Security Services Limited (Chubb). In March 2009 Mr Auston suffered relatively minor injuries in a motor vehicle accident that occurred in the course of his employment. On 6 April 2009 Chubb accepted liability to pay compensation in accordance with the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act) for an injury described as “head and arm contusions”.

2.There was a further incident in August 2009 when Mr Auston sustained a soft tissue injury to his shoulders whilst lifting and shifting heavy items in the course of his employment. Again, on 5 January 2010, Chubb accepted liability to pay compensation in accordance with the SRC Act in respect of this injury, described as “bilateral shoulder strain”.

3.Following the initial incident Mr Auston was treated by his local general practitioner, Dr Robert Choong. After the August 2009 incident Mr Auston was referred by Dr Choong to Dr Dale Rimmington, a consultant orthopaedic surgeon, for further treatment. On 9 February 2010 Dr Rimmington provided Mr Auston with a certificate to the effect that he was unable to work from 9 February 2010 to 9 April 2010. By 17 February 2010 Dr Rimmington was reporting that Mr Auston should be able to resume some administrative/desk duties at reduced hours and days per week, increasing as the pain he was experiencing allowed.

4.In March 2009, after Mr Auston made his first claim for compensation, Chubb engaged Ms Becky Zropf, a consultant rehabilitation provider (and occupational therapist), to manage his rehabilitation. At all material times Ms Amanda Cleland was employed by Chubb as its National Injury Management Coordinator.

5.In late March 2010 Ms Zropf was attempting to get Mr Auston back to work. She had been in telephone contact with him and sent him a text message on 29 March 2010 to the effect that she was hoping to set up a “case conference” with Dr Rimmington which at least she and Mr Auston would attend. She prepared a document called “RTW Schedule No. 3”. It is described internally as a “Rehabilitation Program” and, it is said, once signed by the “case manager”, will constitute a determination under s 37 of the SRC Act. It seems safe to infer that Ms Zropf, at that time, was of the view that Mr Auston had the capacity to undertake a return to work for Chubb on the basis set out in the document i.e. working normal hours, five days per week, in light administrative duties described as “Filing/Distribution of Documents/Shredding ATM Cards”. The document contemplated that each of the employee, the rehabilitation provider, the employee’s supervisor, the treating doctor and Chubb’s Injury Management Coordinator would agree to the return to work plan by signing the document. Ms Zropf signed the document on 30 March 2010.

6.Dr Rimmington saw Mr Auston on 31 March 2010. There is some controversy about what transpired at that consultation. Some of what was discussed emerges clearly enough from a letter of 4 April 2010 sent by Dr Rimmington to Dr Choong. That letter notes,

“[Mr Auston] also expresses some ill feelings towards his current employer and a reluctance to try alternative duties. I have told him that I think he can do modified duties and I have told him that I am suggesting this to Workcover [sic]”.

At the hearing Mr Auston produced a medical certificate signed by Dr Rimmington. It is undated and covers the period 9 April 2010 to 9 May 2010. For that period the certificate noted Mr Auston as being fit for suitable duties, those being noted as,

“Admin/clerical duties.

Start at 4 hours per day, possibly with host employer as has difficulty driving.”

7.Mr Auston said that he was given this certificate by Dr Rimmington at the consultation on 31 March 2010. Dr Rimmington was not able to say when it had been provided. I accept Mr Auston’s evidence. The content of the certificate is broadly consistent with information in the report of 4 April 2010 to Dr Choong which set out the conclusions of the 31 March 2010 consultation. Moreover the dates covered by the certificate follow on from the previous certificate provided by Dr Rimmington on 9 February 2010.

8.It is next material to note that on 1 April 2010 Ms Zropf sent a text message to Mr Auston in which she told him that Dr Rimmington had “approved the return to work program”. Mr Auston, on that day, requested a copy of the plan but Ms Zropf responded by saying that she did not have it at that time. She asked Mr Auston to attend a meeting at Chubb’s Salisbury premises the following Tuesday, 6 April 2010, to “talk about the return to work plans”.

9.That meeting was held as planned. According to Mr Auston he was shown a return to work plan that involved him working normal hours on light duties at the Salisbury premises. He regarded that as being inconsistent in two aspects with the view that Dr Rimmington had expressed about his capacity for work in the certificate provided on 31 March 2010. The plan involved him working eight hour days, twice that suggested by Dr Rimmington and it involved him travelling from Bald Hills (where he resided at the time) to Salisbury, a considerable distance for someone who had difficulty driving. On this basis Mr Auston was not willing to sign the plan. There was discussion back and forth and then it was suggested that a conference be arranged with Dr Rimmington involving Ms Zropf, Mr Auston and Dr Choong. Ms Zropf left the meeting and returned a short time later having arranged a meeting with Dr Rimmington at 11am on 8 April 2010. She gave Mr Auston a written note[1] setting out the details.

[1]    Exhibit 9. It was produced by Mr Auston at the hearing.

10.There was further discussion about the differences between the plan that Mr Auston understood Dr Rimmington to have agreed to and that which Ms Zropf was asserting he had agreed to but no agreement was reached.

11.Ms Zropf, it must be said, did not have a particularly good recollection of the conversations at the meeting and, if she had made notes, they were not able to be produced. In the circumstances I accept Mr Auston’s account of events at the meeting including his evidence that the return to work program set out in the undated certificate from Dr Rimmington was the subject matter of discussions at the meeting.

12.The following day i.e. 7 April 2010, Ms Zropf was able to obtain Dr Rimmington’s signature to the return to work plan she had prepared. Just after 4pm she sent Mr Auston a text message saying, in part,

“…we have received signed RTW program from Dr Rimmington. Tomorrows meeting has been cancelled and you are now to turn up for work tomorrow …”

Mr Auston responded promptly to the effect that he would keep the appointment with Dr Rimmington.

13.Mr Auston (and his spouse) saw Dr Rimmington as planned. According to them, Dr Rimmington examined Mr Auston and said words to the effect of,

“You’re not fit to work. I’m going to ring Chubb and let them know”.

It is not in doubt that Dr Rimmington did not, in fact, contact Chubb. Dr Rimmington seemed to accept that he saw Mr Auston on 8 April 2010. He had no clinical notes of the visit. He did not remember speaking to Mr Auston in the terms alleged by Mr and Mrs Auston.

14.Mr Clark submitted that I ought not accept that this conversation took place. Why, he asked rhetorically, if Mr Auston had been told that, did he not tell Chubb when he wrote to them on 9 April 2010 and 19 April 2010. Mr Auston’s solicitors apparently made reference to Dr Rimmington having “verbally recanted his approval” of the plan in their letter of 10 May 2010[2] but that appears to be the first reference by, or on behalf of, Mr Auston to any change of heart by Dr Rimmington. And, it was submitted, it is implausible that Dr Rimmington would alter his view so soon after having expressed it.

[2]    I say “apparently” because the letter of 10 May 2010, along with a number of seemingly relevant documents, was not included in the s 37 documents.

15.I accept that there is considerable force in these criticisms however I nonetheless accept the evidence of Mr and Mrs Auston that Dr Rimmington spoke to them in the terms alleged. Dr Rimmington no doubt sees many patients and could not be expected now to recall such a conversation. He did not suggest that he could exclude the possibility of the conversation having occurred or that he would necessarily have recalled such a conversation had it occurred. The fact of Dr Rimmington agreeing to the plan propounded by Ms Zropf so soon after he had suggested a much less onerous plan suggests that he was open to be persuaded to change his mind. Mr and Mrs Auston were both adamant that it had occurred. Their evidence satisfies me that Dr Rimmington did indeed again change his mind on this occasion.  

16.In any event Mr Auston did not attend for work on 8 April 2010. On that day Chubb, by Ms Cleland, sent him a letter pointing out that his entitlement to compensation might be suspended if he failed to attend work on 9 April 2010. The letter suggested that a copy of the return to work plan, signed by Dr Rimmington, was enclosed but I am satisfied that it was not.

17.Mr Auston responded to this letter by email the following day pointing out that the return to work plan had not been enclosed and that he was yet to be provided with a copy of the plan. That was eventually done by a letter dated 12 April 2010 (posted on 15 April 2010) and received by Mr Auston on 19 April 2010.

18.On 29 April 2010 Chubb determined that Mr Auston had “…failed to provide a reasonable excuse for [his] failure to participate in the return to work plan”. Mr Auston sought reconsideration by a letter of 30 April 2010 (and also, perhaps, by his solicitors’ letter of 10 May 2010). However reconsideration was sought, the determination of 29 April 2010 was reconsidered, and affirmed, on 27 May 2010. These proceedings followed thereafter.

19.By virtue of s 37(1) of the SRC Act a rehabilitation authority may make a determination that an employee who has suffered an injury resulting in incapacity for work or an impairment should undertake a rehabilitation program. A determination under s 37(1) of the SRC Act comes within the definition of “determination” in s 60 of the Act and may, thus, be made the subject of a request for reconsideration. The decision on reconsideration is capable of review in the Tribunal.

20.Section 37(7) of the SRC Act is relevant. It provides,

“(7)  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.”

21.It is to be borne in mind that the issue in the present proceedings is not the reasonableness (or otherwise) of the rehabilitation program[3]. The issue is whether Mr Auston had a reasonable excuse for his failure to participate in the rehabilitation program.

[3]    See Pascoe v Australian Postal Corporation [2004] FCAFC 4; (2004) 77 ALD 464 at [14].

22.I propose to assume, rather than decide, that the “RTW Schedule No. 3” document constituted a determination under s 37 of the SRC Act. In paragraph [28] below I deal with some issues regarding the adequacy of the document. But those issues aside, it is my view that Mr Auston had a reasonable excuse for failing or refusing (and I think that on the evidence he refused) to undertake the rehabilitation program by attending work as directed on 8 April 2010 and thereafter.

23.That is so, because in my opinion, Mr Auston was reasonably entitled to consider that Dr Rimmington had not agreed to the program. It was not suggested that it was unreasonable for Mr Auston to refuse in those circumstances.

24.It is necessary to consider Mr Auston’s state of knowledge at various times. From 31 March 2010, on the view of the facts that I take, Mr Auston must necessarily have been of the view that Dr Rimmington considered that he was capable only of working four hours per day and at a host employer rather than at Chubb’s premises at Salisbury. The suggestion on the part of Ms Zropf that he ought resume work eight hours per day was contrary to the view of his treating specialist. And, given what he understood to be Dr Rimmington’s views, he was entitled to be sceptical when Ms Zropf suggested that Dr Rimmington had, by 1 April 2010, reached a contrary view. That scepticism was, not unreasonably, compounded when Ms Zropf appeared to be unable or unwilling to provide him with a copy of the return to work program. Her action in arranging a meeting with Dr Rimmington to clarify the position was sensible, even commendable. It is, in hindsight, a great pity that the proposed meeting of all parties with Dr Rimmington was unilaterally cancelled.

25.Given that I accept Mr Auston’s evidence that Dr Rimmington told him on 8 April 2010 that he was not fit to work it was reasonable on his part to refuse to comply with a rehabilitation program that required him to resume work once he had been told that. When, on 19 April 2010, he eventually received a copy of the rehabilitation program signed by Dr Rimmington, that signature had been affixed on 7 April 2010 and, as Mr Auston put it in his letter to Chubb of 19 April 2010, “new considerations were made” at the meeting with Dr Rimmington on 8 April 2010. It is unfortunate that Mr Auston did not expand upon those new considerations in greater detail.

26.It follows that in my view Mr Auston had a reasonable excuse for his refusal to undertake the rehabilitation program; he believed, reasonably, that it required him to work in excess of that which his treating doctor believed him to be capable of. I will then set aside the decision under review and substitute a decision that Mr Auston’s rights to compensation under the SRC Act not be suspended for his refusal to undertake a rehabilitation program. It seems unlikely that Mr Auston has incurred any legal costs; he was unrepresented at the hearing. I will, however, make an order for costs in his favour pursuant to s 67 of the SRC Act.

27.I cannot depart from this case without making some observations, in discharge of the Tribunal’s normative function, about the manner in which Mr Auston’s claim has been dealt with.

28.The starting point seems to me to be the document that is said to constitute the determination under s 37(1) of the SRC Act. Whilst the matter was not the subject of any argument it appears to me that, prima facie, the document does not satisfy the requirements of the statute. I would have thought that, at the least, a determination authorised by statute, ought reflect that it is a determination and that it is authorised by statute. To do so would then satisfy the requirements of s 61(1)(a) of the SRC Act that the notice of the determination set out “the terms of the determination”. It should, as well, set out the reasons for the determination[4]. It might be thought that the reasons would make some reference to the matters in s 37(3) of the SRC Act to which regard must be had in making the determination. And, finally, it ought contain a clear and prominent statement in the terms required by s 61(1)(c) of the SRC Act.

[4] See s 61(1)(b) of the SRC Act.

29.Next, and on the evidence before me, the unilateral decision by Ms Zropf to cancel the conference proposed with Dr Rimmington was most unfortunate. It seems plain that there was a genuine controversy between Mr Auston and Chubb about the views of Dr Rimmington. The conference which Ms Zropf proposed involving Dr Rimmington and Dr Choong was an excellent way of resolving that controversy in a manner that may well have satisfied both sides of the controversy. To cancel the conference once Dr Rimmington had signed the program was unhelpful and productive only of rancour and suspicion.

30.Then, it appears to me to be extraordinary that it took until 19 April 2010 to provide a copy of the determination to Mr Auston. Even when a letter was prepared it was not posted for three working days after the date it bore. Were it to matter, I would have thought that the time for an employee to refuse or fail to undertake a rehabilitation program would not commence until the employee received a copy of the determination requiring the employee to undertake the rehabilitation program.

31.Finally, I should make mention of the documents lodged in the Tribunal in purported compliance with Chubb’s obligations under s 37 of the Administrative Appeals Tribunal Act. That section requires the decision maker to lodge copies of the documents that are relevant to the review of the decision by the Tribunal. There were very many documents, plainly relevant to the review of the decision, which were not provided. The reviewable decision of 27 May 2010 made reference to,

(a)correspondence dated 8 April 2010 from Chubb to Mr Auston,

(b)correspondence of 9 April 2010 from Mr Auston to Chubb,

(c)a letter from Chubb to Mr Auston of 12 April 2010,

(d)a letter from Mr Auston’s solicitors to Chubb of 10 May 2010,

(e)Dr Rimmington’s certificate, apparently dated 31 March 2010.

These were all crucial documents yet they were not included in the s 37 documents. Moreover, the inadequacies in the s 37 documents appear not to have been noticed on the respondent’s side until the working day prior to the hearing. It was a most unsatisfactory situation that the deficiencies in the documents were not noticed, and remedied, well prior to the hearing.

I certify that the 31 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC

Signed:         ...........Signed..........................................................
  Associate

Date of Hearing  29 August 2011
Date of Decision  2 September 2011
The Applicant appeared in person  
Counsel for the Respondent     Mr C J Clark
Solicitors for the Respondent    Dibbs Barker