Barnes and Australian Postal Corporation (Compensation)
[2022] AATA 2413
•22 July 2022
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.
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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 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 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 Force
THE 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.
Senior Member Letcher in Nunez and Australian Postal Corporation [2014] AATA 125 at [28] outlined the following criteria in determining the reasonableness of an excuse:
(a)For a finding that there was, on the balance of probabilities, a reasonable excuse the person should have:
(i) a genuine intention to pursue a program of return to work
(ii) a genuine subjective belief in the factual basis of the excuse
(iii) support by some informed expert opinion of the subjective belief.
(b)In cases where there was a finding of no reasonable excuse it was commonly found that:
(iv) a genuine personal belief in facts unsupported by any expert opinion was insufficient.
(v) an asserted belief professed because of an ulterior motive of not intending to return to work was a disqualification.
It is clear from the authorities, including the remarks of Jagot J referred to above, together with the remarks of Senior Member Letcher in Nunez that what is reasonable is to be determined with regard to the circumstances in which the particular action (or non-action) occurred.
In the current case, the Respondent had written to the Applicant pursuant to s 36(3)of the SRC Act requiring the Applicant to attend a ‘an appointment for a rehabilitation assessment’ to be conducted via videolink. This occurred at a time when there was very deep concern about the spread of COVID-19 throughout the community. Shortly after the notice was issued, the New South Wales government ordered a ‘lockdown’ across the state and a range of other public health measures.
The Applicant argued that despite COVID-19, it was not possible to conduct a proper psychological assessment other than in person. It is not hard to see why the Applicant may have held this opinion. In different circumstances, an in person assessment is likely to be a better course.
A difficulty for the Applicant however, the nature of the power contained in s 36 of the SRC Act is, as put by counsel for the Respondent, coercive. It is designed to ensure that an assessment takes place – there is no limit other than those contained in s 36 of the Act to the type of assessment, the number of assessments, or the manner in which the assessment is carried out.
On one view, this may appear unfair, but it is what has been legislated. There is no discretion given to the person receiving notice to attend a rehabilitation assessment under s 36 of the SRC Act.
It would be possible, in my opinion, for the doctor to say that in their professional opinion, it was not appropriate to conduct an examination in particular circumstances. If, in this case, the doctor had done so, it would have been reasonable for the Applicant not to attend. It is, however, is a matter at the discretion of the doctor, and was not the position in the current case.
On the evidence, Dr Lam-Po-Tang was prepared to carry out the assessment via videolink. Accordingly, it was not reasonable for the Applicant to fail to attend. It would, however, be appropriate for the Applicant in my view to mount an argument in relation to weight that should be given to such an assessment, as opposed to an assessment carried out in person. The circumstances of this assessment did not of itself, in my opinion provide the Applicant with a reasonable excuse not to attend.
At the time the appointment was arranged, there were already significant restrictions across New South Wales in relation to contact between people in both social and professional situations.
Courts and tribunals themselves were already restricting the way in which hearings were conducted because of the situation with COVID-19. In many instances, judges and tribunal members were concerned at the limitations of hearings by videolink. It was however the only real option available.
In the circumstances prevailing at the time the assessment was arranged, I find that despite the limitations of an assessment via videolink, this did not of itself provide the Applicant with a reasonable excuse not to attend the appointment.
On the evidence filed with the Tribunal, it would appear that the Applicant also refused to attend a later in-person appointment arranged for him because of vaccination, mask-wearing and other requirements, which may have resulted in further delays to having his compensation payments reinstated. This was not directly addressed at the hearing. While this is not directly relevant in considering whether the Applicant had a reasonable excuse not to attend the assessment, it does provide some explanation for the continual delay.
Whilst the Applicant is entitled to have a personal opinion as to the reality or otherwise of the COVID-19 pandemic, and the restrictions implemented by government to deal with it, the Tribunal must make its decision as to reasonableness on the basis of the health advice, consequent restrictions, and overall community concern at the relevant time. COVID-19 was a matter of significant concern and perhaps even fear in the community at that time. Health professionals was concerned about exposure to COVID-19. In such circumstances, it was not a reasonable excuse for the Applicant not to attend an appointment with Dr. Lam-Po-Tang, as there was (at that stage) no alternative forum for him to attend an appointment.
Turning to the second point raised by the Applicant, namely that the SRC Act did not directly address the question of whether there was power to require a medical assessment by way of videolink, it cannot succeed. The fact that the SRC Act does not specifically refer to assessments being conducted being videolink does not mean that a medical assessment cannot take place other than in person. In the absence of a specific provision stating that a direction under s 36 can only be issued in relation to a face-to-face medical assessments, it must be assumed that a notice for a different type of assessment is valid and that it is up to the doctor conducting the assessment to decide whether or not such an assessment can properly be made.
I note that, at one point in these proceedings, there was at least a reference to an argument raised by the Applicant regarding his not requesting rehabilitative services from the Respondent, or that he possessed a medical certificate from his treating psychologist advising him against engaging in such services, although this was not what he primarily relied upon during the hearing.
The wording of s 36 of the SRC Act does not require the Applicant make a request to take part in such services – as is discussed earlier, the operative nature of this section is coercive. With regard to any certificate from a treating psychologist, there does not appear to be one in the evidence before the Tribunal, nor was the Tribunal referred to one during the hearing. There was an email from Ms Jillian Harrington, the Applicant’s consulting psychologist, which noted concerns regarding the Applicant being required to attend an assessment with both Dr. Lam-Po-Tang, and another particular consultant psychologist. The Respondent advised the Applicant that the assessment with the consultant psychologist who was particularly objected to would not proceed. This does not appear to have had any bearing upon the proposed assessment with Dr Lam-Po-Tang.
Although the Applicant’s concerns about attending the appointment on 21 June 2021 may be understandable, there was no basis in law for him to fail to attend the appointment. A reasonable person might conclude that a psychological assessment conducted by videolink is less satisfactory than an assessment conducted in person. This is, however, a matter for the weight to be given to such an assessment as opposed to an assessment in person.
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.
I certify that the preceding 33 (thirty -three) paragraphs are a true copy of the reasons for the decision herein of The Hon. John Pascoe AC CVO, Deputy President
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Associate
Dated: 22 July 2022
Date(s) of hearing: 11 July 2022 Applicant: Self-represented Counsel for the Respondent: Mr M. Gollan Solicitors for the Respondent: McInnes Wilson Lawyers
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