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…