Corrie and Comcare
[2009] AATA 203
•24 March 2009
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL Nº 2007/4488
GENERAL ADMINISTRATIVE DIVISION
Re:MARGARET CORRIE
Applicant
And:COMCARE
Respondent
CORRIGENDUM
Tribunal: Miss E.A Shanahan, Member
Date: 2 April 2009
Place: Melbourne
Member Shanahan made a decision under s 43 of the Administrative Appeals Tribunal Act1975 (the Act) on 24 March 2009.
The Tribunal was advised by letter on 16 March 2009 that there was an omission in the decision dated 24 March 2009.
In accordance with s 43AA(1) of the Act, the Tribunal directs that the Registrar insert the following clause after the decision on page 1 and at the end of the conclusion on page 33:
“The Respondent shall pay the Applicant’s costs as agreed or as taxed by the Tribunal.”
(sgd) E.A. Shanahan
Senior Member
DECISION AND REASONS FOR DECISION [2009] AATA 203
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/4488
GENERAL ADMINISTRATIVE DIVISION ) Re MARGARET CORRIE Applicant
And
COMCARE
Respondent
DECISION
Tribunal Miss EA Shanahan, Member Date24 March 2009
PlaceMelbourne
Decision The Tribunal sets aside the decision under review and instead substitutes its decision that the Applicant had a reasonable excuse for her failure to undertake and/or complete the first stage of a three stage rehabilitation program undertaken in December 2005.Her suspension from payment of entitlement is void from the beginning. The matter is remitted to the Respondent for re-institution of payments and calculation of monies owed.
(sgd) EA Shanahan
Member
COMPENSATION ‑ liability accepted 1985 for coccydynia – multiple surgical procedures – persistent pain – rehabilitation program – limited attendance – failure to follow program – compensation suspended – reasonable excuse – pain – decision set aside.
Safety, Rehabilitation and Compensation Act 1988s 36, 37
Brennan v Comcare (1994) 50 FCR 555
Fazlic v Milingimbi Community Inc (1982) 150 CLR 345
McGuiness and Comcare Australia [2007] FMCA 1486
Pascoe and Australian Postal Corporation (2004) 77 ALD 464
Roskill LJ V R & John (Graham) (1974) All ER 561
Re Ferriera and Comcare Australia [1995] AATA 10281
Re Isamailjee and Australian Postal Corporation [1995] AATA 10279
Re Finch and TelstraCorporation Limited [1998] AATA 13130
Re Oellering and Department of Health Housingand Community Services (1992) 16 AAR 198
Re Pollanen and Comcare [2004] AATA 134
Re Stanley Ranjasinghe and Australian Postal Corporation [2008] AATA 66
Corporate Affairs Commission (NSW) v Yuill (1991) 172 CLR 319REASONS FOR DECISION
24 March 2009 Miss EA Shanahan, Member 1. Mrs Corrie applied to the Administrative Appeals Tribunal for review of the decision of a delegate of the Department of Defence dated 15 December 2005, suspending her compensation payments from 10 January 2006. The reason for the suspension was that she had failed to undertake her rehabilitation program during the weeks 1 December 2005 to 7 December 2005 and 8 December 2005 to 14 December 2005. This decision was affirmed by a Review Officer on 24 April 2006.
2. Mrs Corrie was represented by Mr Mark Carey of counsel, instructed by Arnold Thomas and Becker, solicitors. The Respondent was represented by Mr J Wallace of counsel, instructed by the Australian Government Solicitor. The Tribunal had before it two sets of documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (T and ST Documents). The parties tendered the following documents:
The Applicant:
·The statement of the Applicant dated 1 February 2008 – Exhibit A1
·A record of the Applicant’s visits to the Melton Waves Leisure Centre – Exhibit A2
·The Applicant’s weekly exercise diary for the week commencing 15 September 2005 – Exhibit A3
·The Oswestry Pain Questionnaire partially completed by the Applicant – Exhibit A4
·A statement of Philip Corrie dated 13 August 2005 – Exhibit A5
The Respondent
·The T-Documents and Supplementary T-Documents – Exhibit R1
·The statement of Ms Toni Ryan undated and not signed – Exhibit R2
·A letter from Mr John Bourke to Dr Sadhai dated 4 September 2002 – Exhibit R3
·The clinical notes of Mr Bourke for the period 5 February 1986 to 7 February 2006 – Exhibit R4
·The Report of Dr A Webster dated 15 October 2008 – Exhibit R5
ISSUES
3. The issues before the Tribunal are:
(a)was the exercise plan devised by Ms Toni Ryan a valid rehabilitation program;
(b)did Mrs Corrie refuse or fail to undertake this plan/program between the 1st and 7th of December and 8th and 14th of December 2005; and
(c)if there was a refusal or failure, did Mrs Corrie have a reasonable excuse for this refusal or failure.
BACKGROUND TO THE APPLICATION
4. Mrs Corrie had commenced work with the Australian Tax Office at the age of 17. She transferred to the Department of Defence on or about 7 September 1978, working as a Clerical Assistant to the scientists at the Materials Research Laboratory. On 1 August 1985, while carrying some library books, Mrs Corrie slipped on a wet floor and landed on her buttocks. She was helped to her feet by the cleaner and a Department of Defence scientist. Mrs Corrie had been receiving compensation payments since 3 August 1985.
5. Following her fall she was seen by the work’s nurse who prescribed Panadol and supplied a whoopee cushion. The following day she saw her general practitioner, Dr Sadhai.
6. Mrs Corrie continued to experience near constant pain in the region of the coccyx. In November 1985 Mr Ian Jones, orthopaedic surgeon, performed a manipulation and injection (presumably a local anesthetic and steroids) of the coccyx under general anesthesia. A CT scan of the area including the lumbosacral spine prior to this manipulation was said to be normal. The manipulation was of short-lived benefit. In April 1986 Mr Jones undertook a partial coccygectomy. However, Mrs Corrie’s symptoms persisted.
7. Mrs Corrie resigned from her job with the Department of Defence on 12 December 1986. She subsequently took legal action for damages for non‑economic loss in the County Court of Victoria and obtained $80,000. For two years commencing in 1987 she provided home based childcare earning $100 per week. Having informed the Department of Defence of her earnings she was required in 1988 to repay the compensation overpayment.
8. In 1988 a WorkCare rehabilitation service determined there was no need or requirement for any further rehabilitation services, Mrs Corrie having undergone physiotherapy, occupational therapy and chiropractic treatment in association with both operations.
9. In 1994 Mrs Corrie was referred to Mr J Bourke, orthopaedic surgeon, who noted the past conservative treatment including a six week pain management course. He judged the conservative measures to have failed and decided further surgery was indicated. In April 1995 Mr Bourke proceeded to remove the residual coccyx, Mr Jones having removed only the distal half. Once more there was no improvement.
10. Mrs Corrie currently takes analgesics and non-steroidal anti-inflammatory drugs. Though she was prescribed valium at one stage she did not take this medication. She continues to see her occupational therapist and continues to use a TENS machine.
11. In late 2003 Comcare requested detailed medical reports from Mr Bourke and Dr Sadhai. No reason was given to these doctors for the request. Mr Michael Shannon was also asked to see Mrs Corrie and assess the exact extent of any ongoing liability and to ascertain her suitability for rehabilitation. The letter to Mr Shannon stated that these measures had been put in place after Comcare had conducted a review of long-term recipients of compensation payments.
12. In July 2004 the Department of Defence obtained a report from Dr Anthony Webster, occupational health physician. Dr Webster identified several barriers that might prevent a return to work by Mrs Corrie. In particular, he advised that an upgrading regime in order to achieve a sustained work outcome should not be commenced. Based on Dr Webster’s report, Ms Peta Wood, the case manager for Workforce Transition Services of the Department of Defence, concluded it would appear that pursuing further rehab would just be a waste of time (T46, p102).
13. Mrs Corrie refused to request a rehabilitation program. On 24 November 2004 the Rehabilitation Section of the Department of Defence determined that Mrs Corrie was to be assessed by Ms M Lehmann, a psychologist of the Work Solutions Group. Following this assessment, Ms Lehmann recommended assessment by Ms Toni Ryan, Exercise Physiologist of Jointcare. Mr T Lammens of the Department of Defence made a referral under s 36(8) of the Safety, Rehabilitation and Compensation Act 1988 (the Act) to Ms Ryan on 25 June 2005 (T54 p122), regarding advice on a physical restorative program. This was to be the first of a three stage program aimed at returning Mrs Corrie to the workforce.
14. Ms Ryan devised what she termed a graded twelve week Functional Restoration Program. The program aimed at establishing a healthy lifestyle for Mrs Corrie and self- management of her injury, achieving weight loss and increased cardiovascular fitness, promoting a decrease in reliance on medication, increasing her overall strength and an improvement of posture. Ms Ryan was to supervise eight of these twelve sessions and the quote provided was for $4,273.50 plus a three month membership at a fitness centre costing $320. Mr Lammens then made a referral under s 37(3) of the Act to Ms Ryan on 22 November 2005.
15. The program commenced in September 2005 and in October Mrs Corrie and Ms Ryan agreed Mrs Corrie could perform her walking in a hydrotherapy pool and her walking outside her home unsupervised but in accordance with the times set in the initial program. Mrs Corrie was to report to Ms Ryan weekly by telephone.
16. Many of the program activities reportedly increased Mrs Corrie’s pain. Subsequently, on the recommendation of Mr Bourke, the treating surgeon, a gentler approach was taken. The program was revised and re-instituted on 4 November 2005, to be completed in a period of six weeks. On 9 November 2005 Mrs Corrie injured her foot, delaying the program. The actual program was formally notified by the Department of Defence on 22 November 2005 (s 37(3)).
17. In the period under consideration, 1 December 2005 to 14 December 2005, Mrs Corrie did not attend the Melton Leisure Centre hydrotherapy pool nor did she perform all her home based exercises. Mrs Corrie’s telephone contact with Ms Ryan was poor. Ms Ryan recommended suspension of Mrs Corrie’s compensation payments and the Department of Defence suspended her payments on 10 January 2006. The reasons given by Mrs Corrie for her failure to perform the program were not considered reasonable; although on every occasion, including the period under consideration, her prime reason was that the activities exacerbated her pain. Mrs Corrie claimed that while holidaying at Leopold, from Boxing Day 2005 for a period of two weeks, she followed both the swimming and walking program and on her return home resumed her home-based exercises and the hydrotherapy, thereby completing the six week program.
EVIDENCE BEFORE THE TRIBUNAL
18. Immediately prior to Mrs Corrie commencing her evidence-in-chief, the Tribunal Member informed the parties that as part of her preparation for the hearing she had refreshed her memory of the condition of coccydynia by referring to several surgical text books published between 1929 and 2007. The Member had observed that during counsel’s introductory addresses Mrs Corrie had been sitting in the rear of the hearing room and her seated posture could only be described as askew. The Member asked if she always sat balancing on one buttock, in this case the left buttock. Mrs Corrie replied that this was her normal manner of sitting, either on the right or left buttock in order to diminish the pain she experienced in the region of her excised coccyx.
19. Mrs Corrie’s evidence is summarised under the Background to the Application. In her evidence she detailed the original injury and its treatment. She demonstrated the site of her pain. This commenced in the natal cleft (also referred to as the gluteal cleft) at the level of her excised coccyx and spread to both buttocks. The muscle spasms involved the area of the lower lumbar spine and occasionally both thighs. In 2000 she had undergone a hysterectomy and in 2001 or 2002 developed a left inguinal hernia. In total, the left inguinal hernia was surgically repaired on three occasions; that is, there were two recurrences after the initial surgery. A right inguinal hernia was also repaired. She continues to have discomfort in the left groin and a pulling sensation which she has attributed, on medical advice, to the synthetic mesh used in the last left hernial repair.
20. Mrs Corrie said her domestic duties were limited by her pain. All heavy tasks such as changing bed sheets and shopping were performed by her husband or daughter. She was able to prepare meals and perform light housework. She drove her car for short distances and tried to walk once or twice per day for approximately 600 metres. Her walking distance was limited by muscle spasms. She needed to lie down and rest for one hour, three to four times per day in order to obtain relief. The pain was more frequent in cold weather.
21. Mrs Corrie provided her telephone numbers. Her home telephone number had not changed over a period of ten years. Her mobile telephone number differed from the one recorded in Ms Ryan’s file. She said she had telephoned Ms Ryan infrequently, despite the requirement to ring once a week. On occasions she did not make contact and did not leave her telephone number as Ms Ryan had already recorded these.
22. Mrs Corrie’s daughter and her daughter’s family had lived with her from March to November of 2005 while their house was being built. They moved out in late November. Mrs Corrie was involved with her daughter in cleaning her house and re‑installing furniture shifted to accommodate her daughter and her family. These activities greatly increased her pain. During this period she only used her home spa and a hot pack to obtain relief.
23. Mrs Corrie’s exercise diary for the week commencing 15 September 2005 had been annotated by her and by Ms Ryan. Mrs Corrie’s annotation recorded an increase in pain and muscle spasms after two days of performing the exercises, requiring her to rest for most of the intervening weekend.
24. Under cross-examination Mrs Corrie agreed with Mr Wallace that she had not completed all the exercises she had agreed to perform and thus had not completed the program. She denied that she had told Ms Ryan she was worried about bone cancer when she developed the episode of left foot pain.
25. The Tribunal questioned Mrs Corrie as to the sites of pain and the effect of the program on these pains. The coccygeal pain, she said, was slightly worsened, her neck pain remained unchanged and the lower lumbar spine pain became much worse. She understood that the program was aimed at increasing her general fitness.
26. The Tribunal noted that Mrs Corrie had undergone CT scanning of the lumbar spine in 1986 at which time it was normal. A CT scan of the lumbar spine on 12 December 1994 showed disc change at the L4-5 and L5-S1levels (T37, p83).
MS TONI RYAN
27. Ms Ryan had provided a statement (Exhibit R2). She is an Exercise Physiologist. Ms Ryan had been appointed by Work Solutions Group to provide a fitness program for Mrs Corrie. The goal of the program was to enable Mrs Corrie to achieve more with respect to her comfort sitting, standing and driving and allow her to appreciate her grandson. Once Mrs Corrie had achieved an increase in general fitness, the second stage, a rehabilitation program, was to be instituted at Dorset Rehabilitation Hospital in Pascoe Vale.
28. Ms Ryan confirmed that she first saw Mrs Corrie and her husband at their home. A program was commenced in September 2005 and was originally for 12 weeks. The program was interrupted in late September when Mrs Corrie developed an umbilical infection and later a foot injury. The program was revised and shortened to six weeks after Mr Bourke’s advice to make it more gentle.
29. Ms Ryan said that she had been unable to make telephone contact with Mrs Corrie on 41 occasions despite Ms Ryan having telephoned the landline and mobile numbers as provided.
30. Under cross-examination Mr Carey queried Ms Ryan’s statement that: Mrs Corrie concedes she will need a wheelchair if she continues to loose [sic] the strength in her legs and back (ST9, p335). Mr Carey wanted to know to whom she had made this concession. Ms Ryan recalled that she had read a reference to the possibility Mrs Corrie might ultimately need a wheelchair in a 1990s’ medical report. She had read this, rather than Mrs Corrie telling her of the possibility.
31. Ms Ryan said she had interpreted Mrs Corrie’s complaints of increased pain and failure to attend hydrotherapy at the Melton pool as indicating that Mrs Corrie did not want to continue the program. Given that Mrs Corrie’s pain had been resistant to all treatment, Ms Ryan did not believe exercise would make it worse.
32. The Tribunal asked Ms Ryan several questions. In reply she stated she had never treated a client who had been out of the workforce for 20 years; her aims in the fitness program had possibly been different to those outlined by Work Solutions; while she claimed Mrs Corrie had never complained to her of cramps in the legs after exercise, she had read Dr Webster’s report and his comments regarding frequent muscle spasm and cramps; and she had been mindful of Mrs Corrie’s diagnosis of coccydynia. The fitness program had been aimed at increasing upper arm strength.
33. Ms Ryan advised the Tribunal that she frequently recommended suspension of employees’ compensation payments for failure to perform the programs she had devised.
DOCUMENTARY EVIDENCE
34. Melton Waves Leisure Centre provided a list of Mrs Corrie’s attendances for hydrotherapy. These were:
·20 September 2005
·3 November 2005
·25 November 2005
·15 December 2005
·1 February 2006
·9 February, 2006
·16 February 2006 and
·5 May 2006 -. (Exhibit A2)
35. Mrs Corrie’s weekly exercise diary for the week from 15 September 2005 to 21 September 2005 records that she:
HAD TO LIE DOWN CONSTANTLY
NUMBNESS & CRAMPS IN LEGS & SPASMS IN MY BACK ALL WEEK END. USED TENS MACHINE & SAT IN MY CHAIR. (The chair is a special massage chair)
Ms Ryan had given evidence she had not seen any of the diary entries.
36. Mrs Corrie partly completed an Oswestry Chronic Low Back Pain Disability Questionnaire. This was given to her by Ms Ryan in July 2005. Ten multi-choice questions are posed. Mrs Corrie provided the following self-assessment:
·Pain Intensity
The pain is severe and does not vary much;
·Personal Care
Washing and dressing increases the pain and I find it necessary to change my way of doing it;
·Lifting
I can only lift very light weights, at the most;
·Walking
Pain prevents me from walking more than ¼ mile;
·Sitting
pain prevents me from sitting more than ½ hour. [to which she had added] I HAVE TO LIE DOWN OFTEN;
·Standing
I cannot stand for longer than ½ hour without increasing pain.
LIE DOWN WHEN I GET CRAMP OR SPASMS CONSTANT PAIN;·Sleeping
Because of pain, my normal night’s sleep is reduced by less than one-half;
·Social Life
Pain has restricted my social life and I do not go out very often;
·Traveling [sic]
I get extra pain while traveling [sic] which compels me to seek alternative forms of travel. (she had annotated this entry with) LAY SEAT BACK & STOP FREQUENTLY TO GET OUT & STRETCH DUE TO CRAMPS & MUSCLE SPASMS ETC; and question ten
·Changing Degree of Pain was answered
My pain is rapidly worsening. (Exhibit A4)
37. Mr Phillip Corrie, the Applicant’s husband, provided a statement (Exhibit A5) confirming Mrs Corrie’s pain as severe and involving her back and legs with cramps almost daily. The cramps and muscle spasms occurred frequently at night. He described Mrs Corrie’s depression resulting from the pain and the restriction it placed on her, limiting her driving and social activities. He believed the increased pain and stress she suffered in late November and December 2005 had resulted from her cleaning the house after her daughter and family moved. Mrs Corrie rested more frequently, remained in bed most of the day and increased her levels of medication during this period. He said his wife’s program exercises increased the level of pain. He stated that Ms Ryan had told his wife in his presence that she would end up in a wheelchair if she did not do what Ms Ryan asked of her.
38. Mr Corrie confirmed that while they holidayed in Leopold between late December 2005 and early January 2006, Mrs Corrie spent 40 minutes most mornings and afternoons exercising in the pool. During this two week period there were four days when she did no exercise because of increased pain levels. He said that Mrs Corrie could only obtain relief by lying flat.
39. Annexed to of Ms Ryan’s undated and unsigned statement (Exhibit R2) were file entries from 16 March 2005 to 8 June 2006. These include a reference to her original referral from Work Solutions, attempted contact with the treating doctors, treating occupational therapist and physiotherapist, meetings with Mrs Corrie and telephone calls to Mrs Corrie.
40. On 3 August 2005 the entry reads:
-Note from Dr. Sadhai received, “May I please have an update or report as to your involvement with Margaret, Many thanks.” J. Sadhi.
-Discussion with T. Lammens. Agreed that this constitutes approval for the program plan from GP.
On 28 September 2005 there are multiple entries regarding telephone calls and faxes to various doctors and the entry:
-T. Ryan to continue with modified program: introduce treadmill work at home for walking, (T. Lammens approved treadmill hire).
-Reduce program to one x hydrotherapy session per week.
On 9 November 2005 the entry reads:
-Telephone call to M. Corrie: sore foot – X-Ray clear – referred for nuclear scan. Cannot walk. Has not been to the pool. Will call me Friday.
On 24 May 2006 the entry reads:
-Program review : Telephone call from M. Corrie to request intervention with T. Lammens to resume her payments.
-Was told to call me by her solicitor. Stated she has done all her program, went to the pool once per fortnight but slackened off over Christmas. Wants to go back to doing her program in the spa at home. Walking twice per week for 20 mins but stops 2-3 times. No improvement in pain, energy or exercise tolerance.
41. Mr Bourke provided several reports relating to his treatment of Mrs Corrie. In December 2002 he recommended a gentle exercise and stretching program. On 27 September 2005 he notified Mr Lammens that he believed the program the exercise physiologist had devised was appropriate but he said the approach has to be more gentle and self-paced. Mr Bourke’s clinical notes describe the operation of 26 April 1995 and the subsequent unchanged level of pain for which he recommended exercise. On 23 March 2004 he advised Mrs Corrie to go ahead with the Comcare plans for a functional and vocational assessment. In June 1996 the notes record a conversation with Mrs Corrie’s barrister. Mr Bourke advised that Mrs Corrie should be able to be back at work at this time. In his report to Comcare 20 November 2003, having outlined his management of Mrs Corrie, Mr Bourke concluded that:
this lady is unlikely ever to return to work for which she is suited to by education, training or experience. This is likely to be permanent.
42. Dr Sadhai, the treating general practitioner, was of the same opinion as Mr Bourke (T29, p58).
43. Dr Webster, an occupational health physician, assessed Mrs Corrie on 21 July 2004 at the request of the employer, finding she had a very limited capacity for employment. He considered she would be capable of working four hours per day, three days per week, as long as she could sit or stand at her workstation and lie down in a first aid room when her pain was severe. She could not perform bending, lifting or carrying and should be employed in the Melton area to limit travelling. Dr Webster said that Mrs Corrie’s capacity to undertake the rehabilitation program is very limited. He identified numerous barriers, physical and emotional, which included time out of the workforce and limited skills and education. He noted that significant retraining would be required. He concluded that: At the present time I do not believe that there is an upgrading regime that should be commenced (T46, p103‑109). In October 2008 Dr Webster reviewed the documentation regarding Mrs Corrie and opined that the rehabilitation program devised by Ms Ryan was reasonable and Ms Corrie should have been able to perform the activities required. He considered it unlikely but not impossible that the program could cause a recurrence of an inguinal hernia (Exhibit R5).
44. Mr Shannon, orthopaedic surgeon, provided an opinion on 3 February 2004 at the request of Comcare. He diagnosed some form of chronic pain syndrome. He found Mrs Corrie capable of full time clerical duties provided she was not required to perform heavy lifting and could vary her posture regularly. He anticipated her condition, which he attributed to the fall in 1985, would stabilise with ongoing mild discomfort. (Tribunal Note: Mr Shannon appears to have concentrated on the L4-5 and L5-S1 disc degeneration as he states she has had her coccyx removed and her initial symptoms were those of coccydynia (T38, p87)).
45. The T-documents contain numerous written communications between the Department of Defence and Mrs Corrie, Work Solutions and Ms Ryan, with various reports, the varied rehabilitation programs and the decisions to suspend Mrs Corrie’s compensation payments.
46. The most relevant of these written communications and determinations relate to the original assessment under s 36, the rehabilitation reviews conducted by Ms Ryan on 25 September 2005 and 9 November 2005, Mrs Corrie’s documentation of her performance of the program requirements, the determination of 22 December 2005 and the reviewable decision by the Department of Defence dated 24 April 2006.
47. Dr Melissa Lehmann, a psychologist with Work Solutions Group, an approved program provider, provided an assessment under s 36 of the Act. Dr Lehmann had seen Mrs Corrie on 9 December 2004 and 8 February 2005. She recounted Mrs Corrie’s history and treatment since 1985, noting the comments of Dr Sadhai and Mr Bourke, both of whom had opined that Mrs Corrie was unfit for any type of work. In a telephone conversation with Dr Lehmann, Dr Sadhai had indicated he would support rehabilitation activities conducted in his own clinic by in-house physiotherapists and occupational therapists. The Tribunal notes that these activities as outlined by Dr Sadhai had already been in place for several years. Dr Lehmann relied primarily on the report of Dr Webster but did not refer to Dr Webster’s comments that an upgrading program at this time was not indicated. She noted Mrs Corrie’s limitations in terms of driving and household duties. She also noted Mr Bourke and Dr Sadhai’s considerations that Mrs Corrie was unfit for any work and the opinion of Mr Shannon that Mrs Corrie was capable of full time work in a clerical position.
48. Dr Lehmann described the barriers to Mrs Corrie’s rehabilitation and return to the workforce as being Mrs Corrie’s perception that she needs to lie down frequently, her reported limitations on sitting, walking and standing, her reported back pain, chronic pain and stiffness as well as her lack of current administrative skills and disinterest in returning to work. Dr Lehmann outlined a three stage rehabilitation program the first stage of which was a physical rehabilitation program. She identified Jointcare (Ms Toni Ryan), an independent provider of such services, as an appropriate provider.
49. Dr Lehmann recommended that, dependent on Mrs Corrie’s response to the physical rehabilitation program, a pain management program should be considered and that this could be conducted at Dorset Rehabilitation Hospital in Pascoe Vale, the course being part-time over six to eight weeks. She also recommended a referral to a psychologist. The second stage of this program as delineated by Dr Lehmann was to enrol Mrs Corrie in a basic computer course within the confines of her physical restrictions. The third stage was to include finding Mrs Corrie a work placement of, initially, two afternoons a week. The jobs considered suitable or appropriate were an administrative role such as a registry clerk, filing and dispatch, a customer service role, a telephone call centre role and a role as a sales assistant in a small business.
50. The referral to Ms Toni Ryan of Jointcare took place with the approval of the Department of Defence under s 36(8). Ms Ryan assessed Mrs Corrie on 28 July 2005 and constructed a functional restoration plan. This program was instituted in early September 2005.
51. In the program review on 25 September 2005 Ms Ryan recorded that Mrs Corrie had commenced the program on 8 September 2005 and had agreed to apply herself diligently to all aspects of the program. The program at that time involved daily home activities, daily unsupervised walking and a weekly supervised hydrotherapy session (with subsequent revision to unsupervised hydrotherapy sessions at the Melton Leisure Centre). Mrs Corrie was to complete a weekly questionnaire and a daily exercise diary. Ms Ryan said she had discussed the program in detail with Mrs Corrie at the initial session on 8 September 2005 and Mrs Corrie then performed some exercises under her supervision. These involved walking and upper body stretches. Ms Ryan’s follow-up some four days later revealed that Mrs Corrie had not completed her homework or attended the pool again. According to Ms Ryan, Mrs Corrie made excuses that she had not had time to attend the pool and had forgotten to complete the worksheet. Ms Ryan reported that they subsequently had a long and frank discussion about Mrs Corrie’s willingness to apply herself to the program. During that discussion Mrs Corrie expressed anger, frustration and indignation but did renew her commitment to the program. Ms Ryan reported Mrs Corrie as acknowledging that she knew she had no alternative but to get fit to make sure she didn’t end up in a wheelchair.
52. Ms Ryan’s report records that Mrs Corrie refused to meet her face-to-face again to discuss the program as she had been in excruciating agony following the session the previous week. Mrs Corrie said she would not continue with the program until she had been reviewed by Mr Bourke. Following this discussion, Ms Ryan provided Mr Bourke with a copy of the program by letter dated 22 September 2005.
53. In the functional restoration program review of 9 November 2005, Ms Ryan summarised the preceding events, stressing that Mrs Corrie had agreed to apply herself to all aspects of the program but was unable to do so because of a reported exacerbation of an abdominal infection. As a result, her program had been discontinued from 25 September 2005. In the meantime, Mr Bourke had replied to Ms Ryan’s request to review the program and had stated on 21 September 2005 that I feel that the idea is good but the approach has to be more gentle. Following Mr Bourke’s report, it would appear that the program was reviewed and altered. Ms Ryan informed Mrs Corrie of these alterations when she supervised her hydrotherapy at the Melton Indoor Pool on 4 November 2005. Mrs Corrie was said to have worked well in the water but complained of foot pain. Ms Ryan included ankle mobilisation exercises. Ms Ryan reported that Mrs Corrie affirmed her ongoing commitment to the program. Mrs Corrie also stated she was ready to work on her own and that there was no need for Ms Ryan to supervise the program. Ms Ryan agreed to monitor her progress by telephone.
54. Ms Ryan reported that on 9 November 2005 she contacted Mrs Corrie who reported that her foot (side not recorded) had become painful and that she was worried that it might be cancer. A plain x-ray had shown no abnormality and a bone scan (nuclear scan) had been ordered. In the interim, Mrs Corrie appeared to have suspended her pool attendances but continued the upper body program at home. Ms Ryan recommended a continuation of the existing program but also that consideration should be given to the provision of an exercise bike as an alternative to walking should Mrs Corrie foot pain continue.
55. On 15 February 2006 Mrs Corrie provided Comcare with a diarised entry of her activities from 30 January 2006 to 17 February 2006. These included attendance for hydrotherapy at Melton Leisure Centre on 1 February, 9 February and 15 February. She also documented her walking program, use of the TENS machine, chair exercises and use of her home spa, with intervening episodes of no activity due to severe pain and muscle spasms.
56. On 22 November 2005 Mr Lammens determined under s 37 of the Act that Mrs Corrie was fit to undertake the tailored exercise program developed by Ms Toni Ryan dated 7 October 2005 and that she was to undertake this exercise program.
57. Mr Lammens said the purpose of the program was to overcome the physical barriers previously identified. He also stated that it was important that the program was appropriately monitored to ensure that it was meeting those objectives. In view of the latter it was determined that:
·Ms Ryan is to monitor your progress in undertaking this exercise program
·You must contact Ms Ryan by phone at least once every seven days to assist her with monitoring your progress. If Ms Ryan is not available you are to leave a message including a phone numberupon which you can be contacted during normal business hours.
58. Mr Lammens also addressed the requirements of s 37(3) of the Act and the matters he gave consideration to under this section are straight forward and clear except for those listed under s37(3)(f) and (h). Under s 37(3)(f), which refers to the employee’s attitude to the program, Mr Lammens determined, based on Ms Ryan’s report concerning the possibility that Mrs Corrie could ultimately be confined to a wheelchair, that Mrs Corrie had indicated to Ms Ryan that she would do anything to avoid this outcome. He also stated that Mrs Corrie had repeatedly indicated to Ms Ryan her interest and motivation in removing the existing physical barriers. Mr Lammens regarded Mrs Corrie’s concerns relating to a re-introduction to the modern workplace and to her potential skills deficits as not being relevant at the time. A return to employment was regarded as being the last step in the comprehensive rehabilitation program. Mr Lammens concluded that your doctor as well as your specialist is supportive of efforts to address physical barriers.
59. Mr Lammens stated that under s 37(3)(h) no other matters have been considered. The Tribunal assumes that Mr Lammens did not consider the opinions of Dr Sadhai, Mr Bourke and Dr Webster with respect to barriers to return to work, and the opinions of the treating doctors that Mrs Corrie would never be capable of working again, to be relevant at that time.
60. On 24 April 2006 Ms Linda Bevan, Review Officer, in a reviewable decision addressed and considered the determination of 22 November 2005 and the subsequent suspension of compensation payments of 10 January 2006. In this reconsideration the delegate identified the only matter for Comcare to reconsider was whether Mrs Corrie had a reasonable excuse for not undertaking the program between 1 December 2005 and 15 December 2005. Ms Bevan stated that it was not for Comcare to consider whether the program was appropriate or whether the employee had now resumed the program.
61. Ms Bevan determined that the requirements of the program were not onerous and had been drawn up in consultation with the employee’s treating practitioners. The Tribunal notes that this in fact was not the case. Dr Sadhai had never approved the program or authorised a referral to Ms Ryan; and Mr Bourke only commented on the appropriateness of the program after it had been devised and commenced. Ms Bevan determined that Mrs Corrie’s failure to follow the program between 1 December 2005 and 15 December 2005 had been due to Christmas commitments and arrangements. Ms Bevan also stated that there is no evidence of pain would prevent her performing the very minimal requirements of the program. Mrs Corrie’s requirement to contact Ms Ryan to effect monitoring had not been performed. Ms Bevan concluded that:
The employee clearly does not wish to undertake the rehabilitation program, however that is not reasonable excuse for not doing so.
Ms Bevan affirmed the determination said to be dated 12 January 2006.
RELEVANT LEGISLATION
62. Comcare, or its predecessor, accepted liability for Mrs Corrie’s injury in 1985 and compensation payments were made until 10 January 2006. In accordance with s 36 of the Safety, Rehabilitation and Compensation Act 1988, she was required in 2004 to undergo assessment of her capability to undertake a rehabilitation program. Section 36 states:
36 Assessment of capability of undertaking rehabilitation program
(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.
63. The employee, having been assessed as capable of undertaking such a program, attracts the requirements of s 37 relating to such programs. Section 37 provides:
37 Provision of rehabilitation programs
(1) A rehabilitation authority may make a determination that an employee who has suffered an injury resulting in an incapacity for work or an impairment should undertake a rehabilitation program.
(2) If a rehabilitation authority makes a determination under subsection (1), the authority may:
(a)provide a rehabilitation program for the employee itself; or
(b)make arrangements with an approved program provider for that provider to provide a rehabilitation program for the employee.
Note: A rehabilitation program that is being provided to a person under this section might cease if the person is also provided with rehabilitation under the MRCA (see section 18 of the CTPA).
(2A) A determination under subsection (1) is not a legislative instrument.
(3) In making a determination under subsection (1), a rehabilitation authority shall have regard to:
(a)any written assessment given under subsection 36(8);
(b)any reduction in the future liability to pay compensation if the program is undertaken;
(c)the cost of the program;
(d)any improvement in the employee’s opportunity to be employed after completing the program;
(e)the likely psychological effect on the employee of not providing the program;
(f)the employee’s attitude to the program;
(g)the relative merits of any alternative and appropriate rehabilitation program; and
(h)any other relevant matter.
(4) The cost of any rehabilitation program provided for an employee under this section shall be paid by the relevant authority in relation to that employee.
(5) Where an employee is undertaking a rehabilitation program under this section, compensation is not payable to the employee under section 19 or 31 but:
(a)if the employee is undertaking a full-time program—compensation is payable to the person of an amount per week equal to the amount per week of the compensation that would, but for this subsection, have been payable under section 19 if the incapacity referred to in that section had continued throughout the period of the program; or
(b)if the employee is undertaking a part-time program—compensation is payable to the employee of such amount per week as the relevant authority determines, being an amount not less than the amount per week of the compensation that, but for this subsection, would have been payable to the employee under this Act and not greater than the amount per week of the compensation that would have been payable under paragraph (a) if the employee had been undertaking a full-time program.
(6) An employee who is entitled to receive compensation under subsection (5) during a period is not entitled to receive rehabilitation allowance under the Social Security Act 1991 during that period.
(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.
(8) Where an employee’s right to compensation is suspended under subsection (7), compensation is not payable in respect of the period of the suspension.
64. Section 38 relates to the review of determinations made pursuant to s 36 and s 37.
SUBMISSIONS
65. Counsel addressed each of the three issues as outlined in paragraph two of this decision.
WAS THERE A VALID REHABILITATION PROGRAM?
66. Mr Carey contended that the plan or program referred to in the determination was that devised by Ms Ryan on 7 October 2005 (ST p347), commenced on 4 November 2005 and was planned for a six week duration.
67. Mr Carey submitted that the other requirement outlined in the determination of 22 November 2005 was that Ms Ryan monitor the program from afar. Mrs Corrie was to contact Ms Ryan by telephone, at least once every seven days. If Ms Ryan was not available, Mrs Corrie was to leave a message including her telephone number. Mrs Corrie had failed to leave her telephone number.
68. Mr Carey submitted that the suspension of Mrs Corrie’s compensation payments related only to her failure to attend the Melton Leisure Centre for hydrotherapy and for failing to contact Ms Ryan by telephone on a weekly basis. He argued the latter requirement did not relate to a rehabilitation process.
69. Mr Carey referred to the definition of a rehabilitation program contained in the Act and definitions advanced by the AAT in Re Oelling and Department of Health, Housing and Community Services (1992) 16 AAR 198 and Re Wilkinson and Australian Postal Commission [1998] AATA 849. Mr Carey referred in particular to the requirements of s 37(3) of the Act. The question of whether a rehabilitation program had been created in accordance with this subsection had been considered in McGuinness v Comcare [2007] FMCA 1486 by Federal Magistrate McInnis. In McGuinness the Tribunal had failed to have regard to the requirements of s 37(3)(f), that is, to the employee’s attitude to the program; as had the primary decision-maker. FM McInnis found that the AAT and the primary decision-maker where required to establish
… that the foundation stone of a “rehabilitation program” … was in place. It would only be in place if regard to the employee’s attitude to the program had occurred.
70. Mr Carey submitted that Mrs Corrie had a low pain threshold and approached the program with anxiety and apprehension. Throughout, she continued to use her massage chair, heated spa, TENS machine and prescribed medication. All of these measures were accepted treatments.
71. Finally, Mr Carey submitted that Ms Ryan had stressed the need for supervision by her of Mrs Corrie’s performance of the program. This supervision was the major component for the cost of the program. Despite this, Ms Ryan had agreed to forgo her supervision after only one session on 4 November 2005. In her evidence Ms Ryan had described the goal of the program as being to improve Mrs Corrie’s happiness and independence, a goal significantly different to that of the initial rehabilitation plan and the intention of the Department of Defence, the employer.
72. Mr Wallace submitted that Mrs Corrie had been involved in devising the rehabilitation program when she and Ms Ryan attended the Melton Leisure Centre on 8 September 2005 and discussed the exercises to be undertaken. Section 36 and s 37 of the Act had been complied with, there being no constraints on what the rehabilitation program involved as long as it was restorative in nature. He said that the Rehabilitation Authority had considered all the requirements of s 37(3) and Mrs Corrie knew what was required.
73. Mr Wallace contended that the aim of the program had been to increase Mrs Corrie’s physical functionality and pain control, to enable her to progress to stages two and three of a more formal rehabilitation program at the Dorset Hospital. Mr Bourke had encouraged exercises in his letters in the 1990s and Mrs Corrie had informed Ms Ryan that she enjoyed the pool work on those days when her attendance was supervised.
74. Mr Wallace further contended that once Mrs Corrie’s capacity for work had been determined by Work Solutions Group on Dr Webster’s assessment, Mrs Corrie had been referred to an approved provider, namely Ms Ryan.
75. Mr Wallace referred to Brennan and Comcare (1994) 50 FCR 555, wherein the Full Court dealt with the statutory interpretation and the intent of Federal Parliament (as outlined by McHugh J in Georgiardis v Australian and Overseas Telecommunications Corporation (1994) HCA 6) as being to encourage speedy recovery by providing incentives and reducing disincentives to do so.
DID MRS CORRIE REFUSE OR FAIL TO UNDERTAKE THE PROGRAM BETWEEN 1ST AND 7TH DECEMBER AND THE 8TH AND 14TH DECEMBER 2005?
76. Mr Carey referred to Mrs Corrie’s letter of 3 January 2006 to Mr Lammens, in which Mrs Corrie denied that she had failed to perform the program. She said she had attempted to do all that was within her capacity, in accordance with Mr Bourke’s advice. Mr Carey submitted this was not a wilful refusal to perform the program and Mrs Corrie had resumed the exercises in late December 2005, completing the six weeks of the course by early February 2006. Mrs Corrie had later provided a detailed list of her activities from January 30 to Wednesday 15 February (T61, p160).
77. In contrast, Mr Wallace contended that there were no physical or practical difficulties that impacted on Mrs Corrie’s performance of the program. She had agreed that she did not perform the program in the two weeks under consideration. Ms Ryan had only managed to make telephone contact with Mrs Corrie on five occasions out of 41 attempts despite Mrs Corrie saying she was at home. Mrs Corrie had not given a reason for her failure to contact Ms Ryan as required.
DID MRS CORRIE HAVE A REASONABLE EXCUSE FOR HER FAILURE TO COMPLY WITH THE PROGRAM?
78. Mr Carey submitted that Mrs Corrie’s prime reason for non-attendance, in the period under consideration and the earlier aborted program, had been the increase in pain and muscle cramping induced by the prescribed exercises. He referred to the decision in Pascoe and Australia Post (2004) 77 ALD 464 wherein the Full Court of the Federal Court of Australia considered that the unsuitability of a rehabilitation program can amount to a reasonable excuse but not to a failure to commence a program.
79. In concluding his submission, Mr Carey argued that any suspension of compensation payments should be for the same time as the alleged failure of the program; that is the two week period in December 2005. Mrs Corrie had resumed the program in late December 2005. Section 37(7) of the Act states that compensation payments are suspended until the employee begins to undertake the program. Mrs Corrie began the program on 4 November 2005. It was interrupted for most of December and resumed in January 2006. Mr Carey submitted that the suspension should be voided ab initio and compensation payments reinstituted.
80. Mr Wallace submitted that the only reasonable excuses or acceptable reasons were those medically-based, urgent matters that required attention, or life and death threats. None of these, he contended, existed in Mrs Corrie’s case. He argued that the fact situation was similar to that of Re Isamailjee and Australian Postal Corporation [1995] AATA 10279; and that McGuinness should be distinguished, as in that matter Mrs McGuinness had not been consulted regarding the rehabilitation program whereas Mrs Corrie had been involved in the construction of her program.
81. Mr Wallace submitted that it had been open to Ms Ryan to suspend Mrs Corrie and Ms Ryan had given her reasons for doing so in her report of 23 November 2005.
82. Mr Wallace contended that the suspension of payments is lifted when the employee returns to complete the program. He indicated there was no case law on this question regarding suspension of payments.
TRIBUNALS DELIBERATIONS
The Rehabilitation Program
83. Section 4 of the Act defines a rehabilitation program to include medical, dental, psychiatric and hospital services (whether on an inpatient or outpatient basis), physical training and exercise, physiotherapy, occupational therapy and vocational training.
84. The definition was considered by the AAT in Re Oelling as a plan, policy, list or agenda which was formulated for the purpose of restoring the applicant to her greatest potential physically, mentally socially and vocationally. In Re Wilkinson the Tribunal held that;
In the Tribunal's opinion, a rehabilitation program in the context of the Act is a plan for the restoration of an employee, who has suffered a disease or injury, to optimum health and working capacity given any limitations imposed by their condition. Such a plan can include medical treatment, broadly defined, therapy, and physical or vocational training.
85. These definitions have been interpreted widely in many cases, ranging from return to work programs wherein the only difference from full-time work has been the hours worked to the provision of coronary artery by-pass grafting. The interpretations have placed emphasis on the requirement for a structured rehabilitation program.
86. The Act also defines a rehabilitation authority. The Department of Defence is such an authority.
87. The definition of an approved program provider in s 4 of the Act means a person or body approved under s 34(f) or s 34(h) as a rehabilitation program provider and includes a person or body so approved whose approval is renewed under s 34(l). Work Solutions Group is such a provider and Mrs Corrie was referred to it by the Department of Defence. Mr Lammens made a similar referral to Ms Ryan on 18 July 2005 for an assessment under s 36(2).
88. Following a survey of long-term recipients of compensation payments, Comcare identified Mrs Corrie as falling into this group. It obtained reports from her treating doctors, Dr Sadhai and Mr Bourke. Both of these doctors declared Mrs Corrie to be unfit for work. An opinion was sought by Comcare from Mr Michael Shannon, an orthopaedic surgeon. Mr Shannon assessed Mrs Corrie as being capable of full time employment with restrictions on lifting and bending. Mrs Corrie was invited to request that her former employer arrange for an assessment of her capability to undertake a rehabilitation program. Mrs Corrie refused this invitation via her then solicitors. Following her refusal, she was notified that Comcare would contact her former employer to perform the initial rehabilitation assessment and proceed further with return to work plans. Mr Tony Lammens of the Department of Defence was contacted by letter of 4 May 2004 with the recommendation that he obtain a rehabilitation assessment to facilitate a return to work if this claimant is found to have the capacity to do so.
89. As a first step in this process Mr Lammens arranged for Mrs Corrie to be assessed by Dr Anthony Webster, an occupational health physician (s 36(2)(a)).
90. Dr Webster identified Mrs Corrie as having some limited capacity for employment and also identified a number of barriers to her re-entry into the workforce, all of which were likely to be long term. He advised that Mrs Corrie could be considered for part-time clerical work for four hours per day for three days per week, with numerous restrictions on her activities and the need to lie down depending on the severity of the symptoms. He agreed that psychological counselling and a functional restoration program may assist Mrs Corrie to allow a rehabilitation return to work program to be implemented. The major barriers to Mrs Corrie returning to work where her emotional fragility, ongoing pain, the need to be employed locally and the requirement for significant training.
91. Dr Webster was asked the following question;
6.Identify a specific upgrading regime, should this be warranted, in order to safely re-introduce Ms Corrie into the workplace and safely upgrade the injured employee, to ensure that a sustainable work outcome is achieved while preventing injury aggravation.
Dr Webster replied:
At the present time I do not believe that there is an upgrading regime that should be commenced.
92. It is not clear to the Tribunal what an upgrading regime means; although it appears to relate to the employee’s safety in terms of their physical status or health. The Oxford Modern English Dictionary (2nd Edition) defines upgrade as improve and gives the example of improving in health. In response to a further question, Dr Webster considered a functional restoration program with more active exercise as appropriate.
93. Dr Webster’s diagnosis of Mrs Corrie’s condition was that of a chronic pain syndrome following coccyxectomy [sic - the correct term for resection of the coccyx is coccygectomy]. The Tribunal agrees with Dr Webster’s diagnosis and accepts it as being correct.
94. The employer, the Department of Defence, and Comcare have discharged their responsibility in accordance with s 36 of the Act; although it is noted that the case manager of Work Transition Services of the Department of Defence had discussed the report with Mrs Corrie. Mrs Corrie had expressed her lack of confidence in her ability to resume work in any form and reported that the level of pain she experienced would make any work difficult particularly as her condition was worsening. The case manager in reporting to Comcare and forwarding to them Dr Webster’s report expressed her opinion that pursuing further rehabilitation would just be a waste of time (T46, p102).
95. At the request of Mr Lammens (s 36(2)), Mrs Corrie was referred to Dr M Lehmann, psychologist, of Work Place Solutions (an approved rehabilitation provider) for an assessment report addressing the barriers to rehabilitation outlined by Dr Webster.
96. Dr Lehmann saw Mrs Corrie twice and spoke with her general practitioner, Dr Sadhai, by telephone. Dr Lehmann devised a three stage rehabilitation program reporting to Mr Lammens on 5 April 2005. The first stage was to be a physical rehabilitation program and possibly a pain management course, to increase Mrs Corrie’s physical flexibility and strength as well as her social engagement and personal organisation. The second stage was enrolment in and the completion of basic and intermediate computer training courses to update Mrs Corrie’s clerical skills; and in the third stage, the identification of an appropriate workplace in which a return to work program based on part-time hours with modified duties could occur (ST5, p323).
97. During Dr Lehmann’s consultations with Mrs Corrie, the latter was described as exhibiting fear – avoidance regarding a return to work, was said to exhibit extreme chronic pain focus and behaviour and was clearly distressed when discussing the issue of a rehabilitation program aimed at a return to work. Dr Lehmann described Mrs Corrie’s symptoms in unsympathetic terms; for example her (Mrs Corrie) perception that she needed to lie down; her reported limitations on sitting, walking, standing and reported chronic pain, disinterest in return to work and daily household activities; a chronic pain role and that Mrs Corrie’s family were overly supportive and reactive to her needs.
98. Dr Sadhai had indicated to Dr Lehmann that he could provide a fitness program at his clinic, using his in-house physiotherapist and occupational therapist. As this approach had not been effective in the past, it was agreed that Mrs Corrie would be referred to Ms Toni Ryan of Joint Care. An appropriate referral form was sent to Dr Sadhai for his signature. Dr Sadhai did not complete and return this form, despite further requests from Dr Lehmann.
99. Mr Lammens referred Ms Corrie to Ms Ryan under s 36(8). Ms Ryan saw Mrs Corrie and her husband and provided a report on 28 July 2005. Mrs Corrie was reported as not believing she was capable of working in any capacity because of her pain. She and her husband, when interviewed, had expressed their concern and anger that Mrs Corrie was being made to go to work. By the time of this interview Mrs Corrie had resumed treatment from her own occupational therapist and physiotherapist at Dr Sadhai’s clinic.
100. Ms Ryan identified that Mrs Corrie had significant upper body wasting and fatigue and reduced chest, shoulder and lower limb strength all described as an extreme level of deconditioning. She recommended a graded functional restoration program with the following specific aims: establishing a long term commitment to a healthy lifestyle, self-management of her injury; weight loss and increased cardiovascular fitness; decreased dependence on medication; increased lumbar stabilisation endurance and strength; increased overall strength including back and legs to reduce the level of back pain; improve sitting and standing postures and tolerance; education in the benefits of exercise and pacing skills and increase general fitness, in order to explore recreation options for the future (ST9, p334). The program involved walking, hydrotherapy, lumbar stabilisation exercises and arm strengthening exercises to be performed at home and at the Melton Leisure Centre Pool. Ms Ryan records Mrs Corrie as conceding she would be confined to a wheelchair if she did not undertake an exercise program. In her evidence before the Tribunal Ms Ryan resiled from this statement as detailed in paragraph 30 above.
101. The functional restoration program was to be conducted over a period of 12 weeks and be closely supervised by Ms Ryan, in person. The Tribunal cannot find any approval of the program by the rehabilitation authority. Only the second modified six-week program of 7 October 2005, which commenced on 4 November 2005, was given written approval by Mr Lammens on 22 November 2005 The first program commenced on 8 September 2005 at the Melton Leisure Centre in Ms Ryan’s presence. In the following week Mrs Corrie did not undertake her home-based exercises because she had forgotten or hadn’t got around to it. Ms Ryan’s file notes of 12 September 2005 record that Mrs Corrie had telephoned to report increased leg pain and poor sleep. Ms Ryan had a further meeting with Mrs Corrie at the leisure centre on 15 September 2005; at which time Mrs Corrie was reported as having expressed some anger, frustration and indignation. After further discussion, Ms Ryan said that Mrs Corrie renewed her commitment to the program.
102. Ms Ryan had sought approval of the 12 week program from the treating doctors, Dr Sadhai and Mr Bourke. She wrote to both, with follow-up faxes and telephone calls. Mr Bourke replied by fax on 21 September 2005 advising that Mrs Corrie should perform the exercises at her own pace and that the approach to the program by Ms Ryan should be more gentle. The program was then modified to one hydrotherapy session per week, having previously been twice a week, and a treadmill was provided for Mrs Corrie to do her walking at home. Ms Ryan also recorded, in the program review of 25 September 2005, that on 12 September 2005 Mrs Corrie had passed on a letter from Dr Sadhai dated 8 August 2005 (ST13, p343). The content of this letter is reproduced on Ms Ryan’s file record of 3 August 2005 as:
–Note from Dr. Sadhai received, “May I please have an update or report as to your involvement with Margaret, Many thanks.” J. Sadhi. [sic]
–Discussion with T. Lammens. Agreed that this constitutes approval for the program plan from GP. (Ex R2)
103. The Tribunal can only think of two possible explanations for this discrepancy. Either Ms Ryan’s progress review report of 25 September 2005 was about the date of receipt of Dr Sadhai’s letter or the file entry was constructed retrospectively. In any event, the Tribunal cannot see any way in which this letter from Dr Sadhai could be interpreted as approval of the program. Dr Sadhai did not provide approval of this program or the subsequent program devised on 7 October 2005. Mr Bourke faxed Ms Ryan a letter reportedly stating in general I find the exercise program appropriate. This letter was faxed on 24 October 2005 in reference to the newer program.
104. Ms Ryan’s credibility remains in doubt. In her evidence before the Tribunal she initially described the goal of the functional restoration program as aimed at achieving more in respect of Mrs Corrie’s comfort in sitting, standing and driving and allowing her to appreciate her grandson. Later she described the goal as being to increase Mrs Corrie’s arm strength. The diagrams illustrating the so- called pole exercises indicate that some were to be performed sitting on a chair. They required the individual to sit straight, something Mrs Corrie cannot do. During the second functional restoration program, which commenced on 4 November 2005, Ms Ryan’s review dated 9 November 2005 suggested consideration should be given to the provision of an exercise bicycle as an alternative to walking, Mrs Corrie having injured her foot on that day (ST17, p351). It is beyond the Tribunal’s comprehension as to how an individual with coccydynia could sit on an exercise bicycle and pedal. Ms Ryan did not believe that exercise could make Mrs Corrie’s pain worse. Despite her assurances otherwise, the Tribunal doubts that Ms Ryan understands the condition of coccydynia. The six week program, devised by Ms Ryan on 7 October 2005, is subject to the same criticisms applied to the earlier program. This new six week program was accepted by Mr Lammens in his determination of 22 November 2005 and sent to Mrs Corrie on that date. The program had already commenced on 4 November 2005.
105. Mr Lammens’ referral to Ms Ryan of 18 July 2005 was for a s 36(8) assessment (T55, p126). There is no referral under s 37 for the provision of a rehabilitation program to be found in the T-documents other than in the determination of Mr Lammens dated 22 November 2005, which was in relation to the exercise program developed by Ms Ryan on 7 October 2005 and commenced on 4 November 2005. Thus the initial program, instituted on 8 September 2005, was void; as were the first 18 or 19 days (allowing for mail delivery) of the program of 7 October 2005, it having been initiated prior to the determination. No retrospective approval was mentioned in the determination. Mrs Corrie had the right to seek review of the determination within 30 days but did not do so.
106. In Pascoe and Australian Postal Corporation (2004) 77 ALD 464 the Court (Hill, Marshall and Finkelstein JJ) said at paragraph 17:
[17] Those issues or reasons identified by the AAT are reasons why the program may not be suitable for Mr Pascoe, but they do not bear on the question of whether he had a reasonable excuse for failing to attend to undertake the program.
107. In McGuiness and Comcare Australia [2007] FMCA 1486 Federal Magistrate McInnis found that the Tribunal had made an error of law in not taking into account the requirement of s 37(3), in relation to the employee’s attitude to the program (s 37(3)(f)) being the foundation stone of a rehabilitation program.
108. The Tribunal has considerable doubt that either of the programs devised by Ms Ryan were valid in terms of s 37, that either program was appropriate for an individual with coccydynia, that appropriate weight was given under s 37(3)(f) to Mrs Corrie’s attitude to the program, or that appropriate weight was given to Dr Sadhai or Mr Bourke’s written reports in accordance with s 37(3)(h).
109. It may be that the T-documents are deficient and that wider communication between the rehabilitation provider and Ms Ryan did occur unbeknown to this Tribunal. Fortunately, the issue of the validity of the rehabilitation program is not deliberative of the application. To use Mr Wallace’s words, the issue of a reasonable excuse is the nub of the matter.
MRS CORRIE’S FAILURE TO UNDERTAKE THE PROGRAM BETWEEN THE 1ST AND 15TH DECEMBER 2005
110. Mrs Corrie did not perform the exercises delineated in the plan of 7 October 2005 during this period; nor did she, on Ms Ryan’s evidence, telephone Ms Ryan weekly. Mrs Corrie agreed under cross-examination that this was the case.
DID MRS CORRIE HAVE A REASONABLE EXCUSE FOR FAILING TO PERFORM THE PROGRAM?
111. Since her first assessment in April 2005 Mrs Corrie has repeatedly and clearly stated that certain physical activities, including the program exercises, increased the intensity of her chronic pain in the coccygeal area and lower back; and that due to muscle spasms she needed to seek relief by lying down, taking increased dosages of medication, using hot packs and her TENS machine. This was her excuse for failing to perform the walking program and her poor attendance at hydrotherapy. She did reportedly provide other excuses. For example, she was too tired, forgot and was getting ready for Christmas. However, this is not surprising, given Ms Ryan’s rejection of the idea that exercise could worsen Mrs Corrie’s pain. Mrs Corrie did not explain her failure to telephone Ms Ryan weekly except to say Ms Ryan and I have issues.
CONCLUSION
112. Given the diagnosis of coccydynia made by Dr Webster and Dr Sadhai, Mrs Corrie’s demonstration from the witness box as to the site of her pain and its radiation and the 23 year history of chronic pain, her excuse that the program exacerbated her pain was more than reasonable. It is likely that Mrs Corrie’s failure to contact Ms Ryan as required reflected Ms Ryan’s rejection of the idea that exercise increased the severity of Mrs Corrie’s coccydynia. The Tribunal sets aside the decision under review. The matter is remitted to Comcare for reinstitution of compensation fortnightly payments and calculation of arrears owing.
I certify that the one hundred and twelve [112] preceding paragraphs are a true copy of the reasons for the decision herein of Miss EA Shanahan
signed: (sgd) Cassie Renfrew
ClerkDate/s of Hearing 20-22 October 2008
Date of Decision 24 March2009
Counsel for the Applicant Mr M Carey
Solicitor for the Applicant Arnold, Thomas & Becker
Counsel for the Respondent Mr J Wallace
Solicitor for the Respondent Australian Government Solicitor
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