Barnes and Australian Postal Corporation (Compensation) - [2022] AATA 2413

Barnes and Australian Postal Corporation (Compensation) [2022] AATA 2413 (22 July 2022)
Division:GENERAL DIVISION
File Number(s): 2021/6685
Re:Anthony BARNES
APPLICANT

AndAustralian Postal Corporation
RESPONDENT

DECISION
Tribunal:The Hon. John Pascoe AC CVO, Deputy President
Date:22 July 2022
Place:Sydney

The correct or preferable decision is to affirm the reviewable decision, dated 22 July 2021.
.............................[SGD]...........................................
The Hon. John Pascoe AC CVO, Deputy President
CATCHWORDS
WORKERS COMPENSATION – failure to attend a rehabilitative assessment as directed under s 36 of the Safety, Rehabilitation and Compensation Act 1988 – where the applicant’s rights to compensation were suspended - whether the applicant had a ‘reasonable excuse’ under s 36(4) not to undergo an examination in accordance with a requirement – where the applicant objected to the assessment occurring through videolink – limitations of an assessment by videolink – whether s 36 of the SRC Act can require someone to attend an assessment through videolink – excuse not reasonable – decision under review affirmed.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) s 4, 14, 36
CASES
Comcare and Singh [2012] FCA 136
Nunez and Australian Postal Corporation [2014] AATA 125
REASONS FOR DECISION
The Hon. John Pascoe AC CVO, Deputy President
22 July 2022

The Applicant has an injury pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘SRC Act’) for ‘Major Depression’ with a deemed date of injury of 28 August 2004.
On 19 May 2021, the Applicant was advised he was required to attend a rehabilitation assessment on 21 June 2021 pursuant to s 36(3) of the SRC Act .
The Applicant did not attend the rehabilitation assessment on 21 June 2021.
On 14 July 2021, the Respondent issued a determination pursuant to s 36(4) of the SRC Act that the Applicant’s entitlement to compensation under the SRC Act and to institute proceedings under the SRC Act were suspended as of 14 July 2021 until such as the Applicant attended a rehabilitation assessment.
On 15 July 2021, the Applicant sought review of the determination dated 14 July 2021.
On 22 July 2021, the Respondent issued a reviewable decision affirming the determination dated 14 July 2021.
On 15 September 2021, the Applicant lodged application for review of that decision with the Tribunal.
THE LAW
Section 36 of the SRC Act provides that:
(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.
(3) The rehabilitation authority may require the employee to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] AATA 2413
Decision Date: 22 July 2022

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered a dispute between Mr. Barnes and the Australian Postal Corporation concerning the suspension of Mr. Barnes' compensation entitlements. The core of the dispute revolved around Mr. Barnes' failure to attend a rehabilitative assessment as directed under section 36 of the *Safety, Rehabilitation and Compensation Act 1988* (SRC Act).

The Tribunal was required to determine two primary legal issues. Firstly, whether Mr. Barnes had a "reasonable excuse" under section 36(4) of the SRC Act for not attending the assessment. Specifically, Mr. Barnes contended that his objection to the assessment being conducted via videolink, due to the nature of a psychological assessment, constituted a reasonable excuse. Secondly, the Tribunal had to consider whether the SRC Act conferred power upon the Australian Postal Corporation to require an employee to undergo a medical assessment through videolink.

The Tribunal reasoned that Mr. Barnes' objection to a videolink assessment for a psychological evaluation, while subjectively held, did not meet the objective standard of a "reasonable excuse" as interpreted by established case law. The Tribunal noted that the SRC Act does not expressly grant the power to mandate videolink assessments, but it also did not find that the Act prohibited such assessments, particularly when the employee was prepared to attend in person. Drawing on precedent, the Tribunal emphasised that the assessment of reasonableness involves an objective evaluation, not solely the subjective state of mind of the employee. Consequently, the Tribunal affirmed the reviewable decision, meaning Mr. Barnes' compensation entitlements remained suspended.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The Applicant to the Tribunal raised the financial hardship he had suffered a result of the suspension of his compensation entitlements. Unfortunately, there is no discretion given the Tribunal in relation to this issue. DECISION The correct or preferable decision is to affirm the reviewable decision, dated 22 July 2021.

Ratio Decidendi

Legal Principle Established

Section 4(1) of the SRC Act provides:(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 VII…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 ForceTHE ISSUE The issue before the Tribunal is:(a)whether the Applicant had a reasonable excuse for his failure to attend the s 36 assessment on 21 June 2021 with Dr Lam-Po-Tang.DISCUSSION At the hearing, there was lengthy discussion as to the issue(s) the Applicant wanted to put before the Tribunal. As a result of the discussion, it was clarified that the Applicant’s position was as follows: (a)because the medical appointment on 21 June 2021 was an appointment by videolink, in the Applicant’s view, he had a reasonable excuse not to attend given that the appointment was for the purposes of making a psychological assessment which, in the Applicant’s opinion, it was not reasonable or even possible to make other than in person; and(b)the provisions of the SRC Act did not give the Respondent power to require a medical assessment via videolink. The Applicant said there as no such power expressly conferred by the SRC Act in contrast, for example, with the AAT Act which expressly grants the Tribunal such powers. The Applicant made clear that he was prepared to attend a medical appointment in person. I note that in the material filed with the Tribunal the Applicant had previously indicated that he would not attend a medical appointment arranged by the Respondent unless a number of conditions were met, such as him not being required to disclose his vaccination status, not being required to wear a mask at the appointment, and others. These conditions were not met by the Respondent. There is extensive authority from the Full Federal Court and the Federal Court of Australia in relation to the question of what is ‘reasonable’. Jagot J stated in Comcare and Singh [2012] FCA 136 at [27]: It is also convenient to observe here that I should not be taken as accepting the propositions put for Mr Singh that the phrase “without reasonable excuse”, in the context of s 37(7), requires nothing more than an excuse which has some rational foundation, as opposed to one which is irrational, considered from the perspective of the employee. No authority was cited for this approach. It is not supported by the concept that the reason must be “personal to the employee”, discussed in Telstra Corp Ltd v Administrative Appeals Tribunal (2003) 37 AAR 40; [2003] FCA 102 at [11] and Pascoe v Australian Postal Corporation (2004) 77 ALD 464 ; [2007] FCAFC 4 at [18]–[21], the latter of which also emphasises the need for the AAT to “evaluate the reasonableness of any excuse presented …” (at [21]). On first consideration, the submission put for Mr Singh would seem to give no work to the qualification of “reasonable” which generally involves an element of objectivity, even if applied in the circumstances as known to the employee at the time. It cannot be, however, that the subjective state of mind of the employee is the sole dictate of what is a reasonable excuse provided that there is some rational foundation for the employee’s state of mind.