Darwich and Australian Postal Corporation
[2010] AATA 688
•9 September 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 688
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/0420
GENERAL ADMINISTRATIVE DIVISION ) Re Tarek Darwich Applicant
And
Australian Postal Corporation
Respondent
DECISION
Tribunal M D Allen, Senior Member
Dr M E C Thorpe, Member
Date9 September 2010
PlaceSydney
Decision Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the decision under review is AFFIRMED.
.................[sgd].......................
M D Allen, Presiding Member
CATCHWORDS
WORKERS COMPENSATION. Failure to carry out rehabilitation programme. Was initial failure reasonable. Did failure become reasonable after receipt of later medical reports. Decision under review affirmed.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988, sections 37 and 38.
CASES
Shi v Migration Agents Review Authority (2008) 235 CLR 286
Jebb v Repatriation Commission (1988) 8 AAR 285
Pascoe v Australia Postal Corporation (2004) 77 ALD 464
Re Sambastian and Australian Postal Corporation [2010] AATA 141 distinguished.
REASONS FOR DECISION
9 September 2010 M D Allen, Senior Member
Dr M E C Thorpe, Member1. By Application made 2 February 2009 the Applicant sought review of a decision by the Respondent made 15 December 2008 affirming a prior determination to suspend the Applicant’s rights under the Safety, Rehabilitation and Compensation Act 1988 (“SRC”).
2. On 20 August 2008 the Respondent determined that the Applicant was to undertake a rehabilitation program. That program was to take place at the Respondent’s premises at Milperra Sydney (referred to as the Milperra Hub) and the Applicant was to attend at that place on 23 August 2008 to commence the program.
3. The Applicant did not attend at the Milperra Hub on 23 August 2008 and has remained absent from work since that time.
4. Section 37 SRC Act states inter alia:
“(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.
…
(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.”
Whereas section 38 SRC states:
“(1) As soon as practicable after a rehabilitation authority (other than a relevant authority) makes a determination under section 36 or 37, the authority shall cause to be served on the employee to whom the determination relates a notice in writing setting out:
(a) the terms of the determination;
(b) the reasons for the determination; and
(c) a statement to the effect that the employee may, if dissatisfied with the determination, request Comcare for a review of the determination under this section.
(2) An employee in respect of whom a determination under section 36 or 37 is made by a rehabilitation authority (other than a relevant authority) may, by notice in writing given to Comcare, request Comcare to review the determination.
(3) A request shall:
(a) set out the reasons for the request; and
(b) be given to Comcare within 30 days after the day on which the determination first came to the notice of the employee, or within such further period (if any) as Comcare, either before or after the expiration of that period, allows.
(4) On receipt of a request, Comcare shall review the determination and may make a decision affirming or revoking the determination or varying the determination in such manner as Comcare thinks fit.”
5. As was pointed out by the Full court of the Federal Court in Pascoe v Australia Postal Corporation (2004) 77 ALD 464 the appropriateness of the program must be challenged by the employee pursuant to subsection 38(2) SRC Act. If the program has not been thus challenged then the program is taken to be appropriate. The question of whether the employee had a reasonable excuse for not complying with the program is a separate and distinct question, although the factors regarding the program as set out in subsection 37(3) SRC Act are not necessarily irrelevant.
6. This then leaves the question of whether the Applicant’s refusal or failure to undertake the rehabilitation program was without a reasonable excuse.
7. As to what the term “reasonable excuse” encompasses was discussed by the Administrative Appeals Tribunal (“AAT”) Deputy President Jarvis and Professor Reilly Member, in Sambastian and Australian Postal Corporation [2010] AATA 141. At paragraph 56 the Tribunal said:
“We consider that a determination of whether an employee has refused or failed, without reasonable excuse, to undertake a rehabilitation program, within the meaning of s37(7) of the SRC Act should not be confined to the subjective excuse(s) proffered by an employee, and that excuses that are objectively reasonable should also be taken into account in considering the application of s37(7).”
8. This matter raises the question of whether an excuse not reasonable at the time of the original refusal or failure can become reasonable. This type of question received attention by the High Court in Shi v Migration Agents Review Authority (2008) 235 CLR 286. As pointed out in that case the AAT has, depending upon the statute pursuant to which the review is undertaken, generally the power to take into account all relevant matters up to the date of its decision. This concept was referred to by Davies J in Jebb v Repatriation Commission (1988) 8 AAR 285 at 289 as the continuum of the decision making process.
9. We therefore consider that events subsequent to the initial failure or refusal can be taken into account to determine the reasonableness of that refusal or failure. Where we differ from the Tribunal in Sambastian supra is that we cannot accept that events or opinions not known to the Applicant at the time of the initial refusal or failure can subsequently render an unreasonable refusal reasonable ab initio.
10. The Applicant injured his right shoulder on 12 April 2005 as a result of attempting to lift a heavy cylinder which had not been labelled as heavy.
11. The Applicant complained to his superior regarding the injury and was directed to a Dr Antoun, an Australian Postal Corporation (“APC”) facility medical practitioner. Dr Antoun issued a certificate for restricted duties including a provision against driving.
12. Notwithstanding the restriction imposed by Dr Antoun, the Applicant’s supervisor insisted that he attend work the next day. This involved him driving from his home to his place of work at Alexandria. After attending work the Applicant was involved in a motor vehicle accident whilst returning home. This motor vehicle accident was caused in part by restriction of movement in the Applicant’s right shoulder, caused by initial injury the day before.
13. As a result of the motor vehicle accident, the Applicant further injured his right shoulder.
14. On 13 May 2005 a rehabilitation determination was made in respect of the Applicant. As we understand the Applicant’s evidence this program did not in fact take place and he just sat around the transport depot at Alexandria with no duties to perform.
15. The Applicant was then transferred to various other depots performing limited duties and the Respondent accepted liability for the injury described as “right shoulder and right forearm strain”.
16. Numerous rehabilitation programs were undertaken by the Applicant with no apparent success. An exception to this generalised failure was duties performed at the APC “Gateway” facility at Granville, where the Applicant was sorting parcels. In this job he was able to alternate sitting and standing. The Applicant coped with these duties for at least one year until a new manager, for reasons best known to that manager, decreed that no one was to be seated on the facility floor and removed all chairs. The Applicant was then transferred from that facility as he could no longer cope without being able to sit when required.
17. On 28 March 2007, based on a workplace assessment, a rehabilitation program was issued prescribing duties at the APC facility known as the Kingsgrove Hub. The duties were described as a driver/sorter and were to be for full hours including overtime.
18. The Applicant gave evidence that on his first day at the Kingsgrove Hub he carried out what is termed “culling”. The duty involves cutting open bags of mail, depositing the contents onto a conveyor belt and at a table height removing various items from the conveyer and placing them in separate receptacles.
19. To carry out these duties, the Applicant predominantly used his left arm. He was able to take breaks and he said that his supervisors were generally quite good about that. He also did some “facing up” work.
20. The Applicant carried out this work. He was then informed that it was intended to have him drive a van.
21. The Applicant informed his supervisors that he did not want to drive as his medication was affecting his concentration and ability to drive. His supervisors did not accept this initially so the Applicant did not attend for work.
22. At this time the Applicant informed his treating neurologist Dr Cordato that his medication was affecting his ability to drive and sought from him a letter to take to the Roads and Traffic Authority (“RTA”) to support the cancellation of his driving licence.
23. The question of the Applicant’s ability to drive was raised by the Respondent with Dr Cordato. His report dated 27 April 2007 is instructive as in that report Dr Cordato states:
“In response to your question, Tegretol is being used for regional pain syndrome that has appeared as a consequence of his work related accident on 12 April 2005. He finds that if he does not take Tegretol his pain levels significantly increase.
He reports to me that Tegretol causes mild drowsiness, at the current dosing of 100mg once a day. He finds that the drowsiness is such that he personally feels unsafe to drive a vehicle…
There are alternative medications available and I discussed this with him today… However he has had a good response to the Tegretol in terms of pain relief and he does not wish to trial alternatives…”
24. The Applicant was also cross examined regarding other motives for not wishing to undertake driving duties at Kingsgrove. Notes of a discussion between the Applicant and his Rehabilitation supervisor on 29 March 2007 read:
“Advised needs to be home by 3pm to see children/child care. Reports was on 10:30pm shift for 3 years prior to injury…”.
Although denied by the Applicant we have no reason to doubt the accuracy of these notes made at the time.
25. Further notes made by the APC rehabilitation supervisor note that on 29 March 2007 the Applicant, after discussion, undertook to perform driver duties at the Kingsgrove Hub from Monday 2 April 2007. The Applicant did attend at Kingsgrove on Monday 2 April 2007 but did not report for work on Tuesday 3 April 2007. When contacted, the Applicant apparently stated that he would not return to work as he would not drive a van, car or truck. The Applicant’s evidence was that he worked for two days at Kingsgrove but the records of the Respondent, see document T19 at paragraph 159, indicate he only worked one day, namely Monday 2 April 2007.
26. In evidence the Applicant conceded that he had coped with the duties namely culling and facing up that he performed at Kingsgrove.
27. Following a further conference and a report from sports physician Dr Muratore a rehabilitation program was determined on 20 August 2007 which required the Applicant to undertake duties at the Milperra Hub. The duty description is:
Duties
Restrictions/Comments
· Facing up mail
· Culling mail (culling only). No tipping mail bags or lifting full trays
Medical restrictions:
- 5 kg lifting limit
- Take regular rest breaks
- No above shoulder height work with right arm
28. The notes of the meeting with the Applicant on 17 August 2007 prior to the making of this determination are found at document ST19 paragraphs 170 to171.
29. The rehabilitation program determination of 20 August 2007, which was served on the Applicant, contains the following passage:
“A review workplace assessment has been scheduled on Thursday 23 August 2007 at Milperra Hub (9 Sheridan Close, Milperra) with Mr David Tallentire, OH&S Advisor to provide you with functional education for performance of the duties outlined in the program.”
30. Prior to the determination being made, a proposed determination was put before Dr Muratore who had previously examined the Applicant on 30 April 2007. In relation to the proposed duties on 10 August 2007, Dr Muratore reported to the Respondent:
“In my opinion, the Programme is eminently suitable for his physical capabilities and he could perform this without increased risk of further injury, if he were willing to do so.”
31. There is no dispute between the parties that the Applicant failed to report for duty at the Milperra facility and did not provide any reason to the Respondent for not attending when required to do so by notice dated 24 August 2007. By determination dated 3 September 2007 the Applicant’s rights pursuant to the SRC Act were suspended.
32. We are satisfied that at the time the determination suspending the Applicant’s rights to compensation was made, he did not have a reasonable excuse for not complying with the rehabilitation program.
33. In reaching this decision we find that the Applicant had been informed of the duties he was to undertake and that previously he had successfully performed these duties both at Granville and at Kingsgrove.
34. Further he had been informed that Mr Tallentire, an OH&S Advisor would have been present on his start day, namely 23 August 2007, to provide him with functional education for performance of the duties outlined in the program.
35. Even accepting that the Applicant did have problems with undertaking the journey to and from work by public transport he never attempted the journey so any complaint is at best theoretical.
36. Subsequent to the suspension of the Applicant’s rights, medical reports were obtained by the Applicant’s solicitors regarding the proposed duties. The letter of instruction to those medical practitioners became Exhibit R8 in these proceedings.
37. Our opinion is that the range of duties as described in the solicitor’s letter exaggerates the movements required of the Applicant. Consequently any reports based upon that letter must be treated with caution. That is to say they cannot be rejected but must be examined in the light of what was actually required, plus the fact that the Applicant apparently had no problems carrying out these duties both at Granville and at Kingsgrove.
38. Contrary to the medical opinions tendered on the Applicant’s behalf, Dr Muratore was of the opinion the Applicant could cope with the duties. In his report of 30 April 2007 he states:
“1. This gentleman may have sustained a brachial plexus traction injury, from which I believe he has recovered.
2. He may also have had a rotator cuff tendinitis but it is difficult to correlate the examination today to any organic pathology…
3. Osteoarthritis of the right acromioclavicular joint, identified on MRI on 13/4/06… I do not believe it is a significant problem at this time as, although he describes nocturnal pain on lying on his right side, there is no pain with the cross adduction test nor is there any weakness of external rotation.
4. He may have sleep apnea…
This gentleman’s signs and symptoms cannot be explained on a purely anatomical basis.
This gentleman is unable to undertake suitable duties, which would involve driving a van, as he is about to relinquish his driver’s licence, the reasons for which do not make sense to me. … In my opinion, he probably should cease taking the Tegretol rather than relinquishing his driver’s licence.”
39. In evidence to the Tribunal Dr Muratore stated that when he examined the Applicant his physical signs were not consistent with the degree of pain he was reporting. Pressed in cross examination he was quite blunt, stating:
“I though he was bunging it on”.
40. The opinion of Dr Muratore was corroborated by occupational physician Dr Chase, who in his report of 27 November 2008, after stating that he had previously examined the Applicant on 10 August 2005, stated:
“His overwhelming presentation is that he is increasing his disability either deliberately or unconsciously for reasons that remain obscure”.
41. Asked if the Applicant could have performed the duties of the rehabilitation program dated 20 August 2007 Dr Chase’s opinion was:
“There are absolutely no reasons why he could not do so.”
42. Dr Chase concluded his report by stating:
“In reading all of the supplied documents it is clear that there is significant symptom amplification in Mr Darwich’s case. Indeed there appears to be quite conscious attempts to increase his alleged disability – for example I draw your attention to his alleged inability to drive a car because of his medication despite the fact he had been taking that medication for some months and despite the advice of his neurologist Dr Cordato. Since relinquishing his licence he now alleges that this was instigated by Dr Cordato, yet it is clear from Dr Cordato’s report that this was not the case. This behaviour is clearly intended to increase alleged disability and block rehabilitation.
Mr Darwich represents the classic compensable injuries conundrum of high levels of reported pain, minimal if any alleged objective impairment and high levels of disability. I note Dr Muratore’s comments that this may represent a factitious disorder and I must agree….”
43. Rheumatologist Dr McGill examined the Applicant on 26 July 2006 and 26 October 2009. In his report of 26 October 2009 Dr McGill opines:
“I think the diagnosis of the injury sustained on 12 April 2005 was a partial thickness tear of the distal right supraspinatus tendon. I do not think that he suffered any significant neurological injury and specifically I do not think that he suffered a significant injury to the brachial plexus.
The injury sustained on 12 April 2005 now contributes very little if at all to his presentation and his functional capacity…
With respect to whether he was fit to participate in the upgrading program dated 20 August 2007, I note that stage 1 of that program involved facing up mail and culling mail with no tipping of mail bags and no lifting of full trays. There was a 5kg lifting limit. He was to perform no above shoulder height work with the right arm. I think he was fit for those duties at that time. With respect to his right shoulder, he remains fit for those duties but, as noted above, his very severe obesity makes it unlikely that he is now fit for any work.”
44. In a previous report dated 19 March 2007 Dr McGill had stated, after referring to the Applicant’s medications:
“I note that Mr Darwich has apparently been advised that he is unfit to drive a vehicle due to his current medication (Tegretol 100mg twice daily and Ibuprofen 400mg, usually twice daily). That advice is not in keeping with standard medical care. Ibuprofen rarely if ever interferes with the capacity to drive and rarely if ever causes drowsiness. There is thus no contraindication with respect to the use of Ibuprofen in the context of driving.
Tegretol (Carbamazepine) can cause drowsiness. Caution with driving, at the commencement of medication and when the dose is increased, is recommended (such as in MIMS). The dose that Mr Darwich is using is low. It is worth noting that the usual anti-convulsant dose is 400mg two or three times per day and that larger doses are sometimes required….
I think the claim that Mr Darwich’s medications make him unfit to drive a vehicle is not correct.”
45. We cannot understand the Applicant’s attitude, as expressed to Dr Cordato, that he was unwilling to try other medications apart from Tegretol when he found that medication was making him drowsy. If he intended to get back into the workforce, one would think he would try those drugs that might advance that aim. Similarly instead of attempting the duties at Milperra, he simply refused to attend for duty. Had he attempted to carry out the duties he may have had a legitimate reason for failing to carry out the program as opposed to a mere refusal.
46. We find that the Applicant had no reasonable excuse for failing to undertake the rehabilitation program and that given the reports of Doctors Muratore, Chase and McGill, which we prefer given the demonstrated ability of the Applicant to carry out the tasks that it was proposed he undertake, that any later medical reports obtained by the Applicant are simply attempts to justify the refusal, which attempts we reject.
47. The Applicant did not have a reasonable excuse for failing to carry out the rehabilitation program of 20 August 2007 as at 23 August 2007 and has not had a reasonable excuse since that time.
48. The decision under review is AFFIRMED.
I certify that the 48 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen and Dr M E C Thorpe, Member
Signed: ......................[sgd]................................
K. Lynch, AssociateDates of Hearing 16 & 17 August 2010
Date of Decision 9 September 2010
Counsel for the Applicant Mr L Grey
Solicitor for the Applicant Carroll & O’Dea Lawyers
Counsel for the Respondent Mr M Gollan
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