Doyle and Telstra Corporation Limited (Compensation) - [2025] ARTA 182

Doyle and Telstra Corporation Limited (Compensation) [2025] ARTA 182 (19 February 2025)
Applicant/s:  Peter Patrick Doyle
Respondent:  Telstra Corporation Limited
Tribunal Number:                2022/5811

Tribunal:General Member Gallagher
Place:Perth
Date:19 February 2025

Decision:The Tribunal:
1. Affirms the Reviewable Decision insofar as s 37(7) of the SRC Act applies (given that the Applicant failed or refused to comply with a rehabilitation program provided for him without reasonable excuse); and
2. Sets aside the Reviewable Decision and substitutes it for a decision under s 37(7A) of the SRC Act that the Applicant was not entitled to compensation under s16 of the SRC Act on and from 23 February 2024, because he no longer suffered from an injury for the purposes of the SRC Act.

..........................................[SGD]..............................
General Member Gallagher
Catchwords
COMPENSATION – Commonwealth employee – accepted injury – bilateral shoulder, arm and neck soft tissue muscle strain – whether the Applicant refused or failed, without reasonable excuse, to undertake a rehabilitation program provided for him by the Respondent under s 37(1) of the Safety, Rehabilitation and Compensation Act 1988 – Reviewable Decision affirmed
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 16, 19, 37, 37(1), 37(7)
Cases
Telstra Corporation Ltd v Hannaford [2006] FCA 87; (2006) 151 FCR 253
Prain v Comcare (2017) 256 FCR 65; [2017] FCAFC 143
Woodhouse v Comcare (2021) 285 FCR 14
Statement of Reasons
THE APPLICATION

The Applicant seeks review of a decision of the Respondent dated 16 June 2022, which affirmed a determination dated 19 April 2022 determining that:
(a)Any entitlement the Applicant may have to compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) (except for medical treatment costs); and
(b)Any right the Applicant may have had to institute or continue any proceedings under the SRC Act in relation to compensation,
is suspended from 19 April 2022 (Reviewable Decision).[1]
[1] R11, T67, page 313.
ISSUE
The issue for review is whether the Applicant refused or failed, without reasonable excuse, to undertake a rehabilitation program provided for him by the Respondent under s 37(1) of the SRC Act. In turn, this requires consideration of:
(a)Whether the Applicant continues to suffer from ‘Bilateral Shoulder, Arm and Neck Soft Tissue Muscle Strain’;
(b)If not, whether the Applicant’s right to receive compensation under s 16 of the SRC Act was properly preserved by the Suspension Determination and the Reviewable Decision;[2]
(c)Whether the Applicant refused or failed to undertake the rehabilitation program for the purpose of s 37(7) of the SRC Act;
(d)If so, whether that refusal or failure was “without reasonable cause” for the purposes of s 37(7) of the SRC Act.
[2] Telstra Corporation Ltd v Hannaford [2006] FCA 87; (2006) 151 FCR 253; Prain v Comcare (2017) 256 FCR 65; [2017] FCAFC 143; Woodhouse v Comcare (2021) 285 FCR 14 at 33 to 34 [85].
BACKGROUND
The historical background to this matter is extensive. The Tribunal emphasises the following factual matters pertinent to…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2025] ARTA 182
Decision Date: 19 February 2025

CaseChat Overview and Summary

The applicant, Doyle, seeks a review of a decision by the respondent, Telstra Corporation Limited, affirming a determination that any entitlement Doyle may have to compensation under the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) (except for medical treatment costs), and any right to institute or continue proceedings in relation to compensation, is suspended from 19 April 2022. Doyle argues that the determination was made in error, specifically that he did not refuse or fail, without reasonable excuse, to undertake a rehabilitation program provided for him by Telstra. The court must consider whether Doyle continues to suffer from his injury, whether his right to compensation was properly preserved, whether he refused or failed to undertake the rehabilitation program, and if so, whether that refusal or failure was without reasonable cause.

The court found that Doyle no longer suffers from the injury in question, as evidenced by the lack of ongoing medical treatment or prescriptions for shoulder pain. The doctor's opinion was that the treated condition had recovered. Additionally, the court held that Doyle did indeed refuse or fail to undertake the rehabilitation program as required, specifically by not applying for the necessary number of job roles per week, not applying for suitable jobs within his medical restrictions, and not engaging in identified work opportunities. Doyle's claim that he had a reasonable excuse for not undertaking the program was rejected due to lack of evidence supporting his assertion.

Consequently, the court affirmed the respondent's decision to suspend Doyle's compensation rights. The court held that Doyle's failure to participate in the rehabilitation program without reasonable cause justified the suspension of his compensation entitlements. Therefore, the review application was dismissed, and the original decision was upheld.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The issue for review is whether the Applicant refused or failed, without reasonable excuse, to undertake a rehabilitation program provided for him by the Respondent under s 37(1) of the SRC Act. In turn, this requires consideration of:(a)Whether the Applicant continues to suffer from ‘Bilateral Shoulder, Arm and Neck Soft Tissue Muscle Strain’;(b)If not, whether the Applicant’s right to receive compensation under s 16 of the SRC Act was properly preserved by the Suspension Determination and the Reviewable Decision;[2](c)Whether the Applicant refused or failed to undertake the rehabilitation program for the purpose of s 37(7) of the SRC Act;(d)If so, whether that refusal or failure was “without reasonable cause” for the purposes of s 37(7) of the SRC Act.[2] Telstra Corporation Ltd v Hannaford [2006] FCA 87; (2006) 151 FCR 253; Prain v Comcare (2017) 256 FCR 65; [2017] FCAFC 143; Woodhouse v Comcare (2021) 285 FCR 14 at 33 to 34 [85].BACKGROUND The historical background to this matter is extensive. The Tribunal emphasises the following factual matters pertinent to the present application. On 7 April 1995, the Applicant commenced employment with the Respondent,[3] working in construction and maintenance roles.[3] R11, T3, page 20. On 21 June 2017, the Applicant sustained an injury described as ‘Bilateral Shoulder, Arm and Neck Soft Tissue Muscle Strain,’ for which, on 28 July 2017, the Respondent accepted liability to pay workers compensation under the SRC Act (the Injury).[4][4] R11, T3, page 20. Liability to pay compensation was accepted from 21 June to 2017 under s19 of the SRC Act upon valid certificates of capacity and from 21 June under s 16 of the SRC Act for reasonable medical treatment expenses. The Applicant described the circumstances of the Injury as:[5]Pulling with both arms backwards some cable from groundNo pain at timeHad pain afterwards[5] R8, page 15, consultation note dated 3 July 2017, by Dr Clare Isaachsen, GP, Ocean Keys Family Practice. The Injury was ‘discussed [to likely be a] soft tissue injury.’[6] The Applicant claims to continue to suffer from the Injury.[6] R8, page 25, consultation note dated 25 July 2017, by Dr Derrick T Kuan, GP, Ocean Keys Family Practice. In February 2019, the Applicant successfully gained casual employment as a Driver for Graylands Hospital, having first completed the relevant application form and being deemed fit by a Senior OSH Nurse to perform this role.[7][7] R10, pages 110 to 125 and 136. On 29 October 2019, the Applicant accepted a voluntary redundancy leading to the cessation of his employment with the Respondent.[8] [8] R11, T4, page 26. After the Applicant’s employment with the Respondent ceased, he continued to receive compensation entitlements for the Injury and compensation for medical expenses under s 16 of the SRC Act. The Tribunal understands that at this time, the Applicant was working normal full-time hours on modified duties under a rehabilitation program, with the goal of returning to his pre-injury role with the Respondent.

Evidence

Evidence Before The Court

However, subsection 37(7) does not operate to suspend the employees’ rights to compensation for the cost of medical treatment payable under section 16:(7A) However, subsection (7) does not operate to suspend the employee’s right to compensation for the cost of medical treatment that is payable under section 16. (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.THE HEARING AND THE EVIDENCE The matter was heard in Perth on 20 November 2024. The Applicant was self-represented. The Respondent was represented by Ms Kate Slack of Counsel, instructed by Ms Waldron-Hartfield of Moray and Agnew. All parties appeared in person. The Respondent called Dr Martyn Flahive (Consultant Occupational Physician) as a witness, who gave evidence in person. The Applicant did not call any witnesses. The Tribunal admitted the following documents into evidence:(a)Respondent’s Joint Tender Bundle containing A1, R1 – R7, comprising pages 1 – 399 (A1-R7); and(b)Respondent’s Supplementary Joint Tender Bundle containing R8 – R10, comprising pages 1 – 161 (R8-R10);(c)Respondent’s section 37 Documents, labelled T1 – T68, comprising pages 1 – 319 (R11);(d)Supplementary Report of Dr Flahive dated 7 November 2024, together with letter of instruction from Moray and Agnew Lawyers dated 21 October 2024 (R12); and(e)Surveillance video footage of the Applicant, with related report from Triton Investigations Group dated 16 January 2024 (R13). The Tribunal has reviewed all of the material before it. The Tribunal is satisfied that all the relevant evidence was before the Tribunal and that the parties were provided an opportunity to address it, either orally or in writing. Relevant aspects of the evidence and material before the Tribunal will be analysed and referred to below.The Applicant The Applicant gave evidence that he is still working Graylands Hospital for 8 hours per week, and for the last two and a half years his role has been as a ward postman and medication orderly, not as a patient driver. The Applicant said he was initially recommended for the job through a friend, who would give him a lift to work as he does not have a car[41] and has never owned one. The Applicant said that if his friend was on holidays or sick, he then would not go to work for that shift as his friend was not there to drive him. The Applicant said his wife has a car but she uses it for work every day.[41] See A1, page 1. When asked, the Applicant said that the two issues he has with driving are 1) he has no car available and 2) he does not drive for health reasons. The Applicant also said he has concerns that he will fall asleep driving, as he had started to fall asleep driving for Graylands Hospital, so he had to stop. When taken to his email to Mr Vagnoni where he stated that three of the job vacancies identified were unsuitable as did not have the transport to get to the required locations, the Applicant gave the reason that he was unable to do so because his wife had the car.

Decision

Reasons for decision

The Applicant seeks review of a decision of the Respondent dated 16 June 2022, which affirmed a determination dated 19 April 2022 determining that:(a)Any entitlement the Applicant may have to compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) (except for medical treatment costs); and (b)Any right the Applicant may have had to institute or continue any proceedings under the SRC Act in relation to compensation, is suspended from 19 April 2022 (Reviewable Decision).[1][1] R11, T67, page 313.ISSUE The issue for review is whether the Applicant refused or failed, without reasonable excuse, to undertake a rehabilitation program provided for him by the Respondent under s 37(1) of the SRC Act. In turn, this requires consideration of:(a)Whether the Applicant continues to suffer from ‘Bilateral Shoulder, Arm and Neck Soft Tissue Muscle Strain’;(b)If not, whether the Applicant’s right to receive compensation under s 16 of the SRC Act was properly preserved by the Suspension Determination and the Reviewable Decision;[2](c)Whether the Applicant refused or failed to undertake the rehabilitation program for the purpose of s 37(7) of the SRC Act;(d)If so, whether that refusal or failure was “without reasonable cause” for the purposes of s 37(7) of the SRC Act.[2] Telstra Corporation Ltd v Hannaford [2006] FCA 87; (2006) 151 FCR 253; Prain v Comcare (2017) 256 FCR 65; [2017] FCAFC 143; Woodhouse v Comcare (2021) 285 FCR 14 at 33 to 34 [85].BACKGROUND The historical background to this matter is extensive. The Tribunal emphasises the following factual matters pertinent to the present application. On 7 April 1995, the Applicant commenced employment with the Respondent,[3] working in construction and maintenance roles.[3] R11, T3, page 20. On 21 June 2017, the Applicant sustained an injury described as ‘Bilateral Shoulder, Arm and Neck Soft Tissue Muscle Strain,’ for which, on 28 July 2017, the Respondent accepted liability to pay workers compensation under the SRC Act (the Injury).[4][4] R11, T3, page 20. Liability to pay compensation was accepted from 21 June to 2017 under s19 of the SRC Act upon valid certificates of capacity and from 21 June under s 16 of the SRC Act for reasonable medical treatment expenses. The Applicant described the circumstances of the Injury as:[5]Pulling with both arms backwards some cable from groundNo pain at timeHad pain afterwards[5] R8, page 15, consultation note dated 3 July 2017, by Dr Clare Isaachsen, GP, Ocean Keys Family Practice. The Injury was ‘discussed [to likely be a] soft tissue injury.’[6] The Applicant claims to continue to suffer from the Injury.[6] R8, page 25, consultation note dated 25 July 2017, by Dr Derrick T Kuan, GP, Ocean Keys Family Practice. In February 2019, the Applicant successfully gained casual employment as a Driver for Graylands Hospital, having first completed the relevant application form and being deemed fit by a Senior OSH Nurse to perform this role.[7][7] R10, pages 110 to 125 and 136.

Ratio Decidendi

Legal Principle Established

At hearing, when asked whether there was any evidence of ongoing injury in the Applicant’s shoulders, Dr Flahive said that when he saw him, there was no evidence of impingement of cuff tear and I his view, what had been treated had recovered and he did not think there was anything that would warrant intervention. When asked, Dr Flahive confirmed that the Applicant had not been prescribed any medication for shoulder pain for the last few years and was currently on a low dose of aspirin. CONSIDERATION The issue for review and related matters for the Tribunal’s consideration are set out above.[63] The Tribunal addresses each in turn.[63] See [2].The Applicant’s position The Applicant’s position is set out in his undated statement, filed on 18 June 2024.[64] In summary, the Applicant contends:(a)there was a verbal agreement that he would only need to look for between one and three jobs per week, not five;(b)he was sending three job applications a week without success;(c)he requested feedback from prospective employers as to why he was unsuccessful, but these requests were not addressed and making such enquiries was causing his pre-paid phone plan to become expensive;(d)he granted Konekt access to his Seek account to allow them to obtain feedback from unsuccessful job applications, but they were unable to obtain any feedback. He continued to be pressured for this information; (e)there was no mention of work trials;(f)Konekt has been unable to offer him paid work and are only providing work experience. He would lose his superannuation benefits if he were to do engage in work experience; and(g)he has been ‘totally abandoned’ by the company.[64] A1. At hearing the Applicant added that while he concedes that he refused or failed to undertake his rehabilitation program as required, he believes he had a reasonable excuse not to do so. The Applicant submitted that his reasonable excuse was that Mr Steve Broad[65] said that he did not have to apply for five jobs per week.[66][65] Health Management and Rehabilitation Consultant for the Respondent.[66] There is no evidence before the Tribunal that this was the case.The Respondent’s position In summary, the Respondent contends that the Applicant on longer suffers from the Injury and so it follows that there is no entitlement to compensation under s 16 of the SRC Act and therefore, the Applicant’s right to claim compensation ought not to have been preserved on and from (at least) 23 February 2024 (the date of Dr Flahive’s report).[67][67] See Respondent’s written outline of submissions at [20(a)]. The Respondent’s also contends that the Applicant refused or failed to undertake a rehabilitation program provided for him by the Respondent over the course of numerous rehabilitation programs, however, finally, the rehabilitation program dated 18 January 2022[68] by refusing or failing to:[69](a)apply for five job roles per week;(b)apply for appropriate and suitable jobs that were within his medical restrictions;(c)complete compliant job seeking logs on a weekly basis;(d)engage in identified suitable work opportunities including identified work trial opportunities; and(e)undertake suitable re-training, notably, undertake a Pathology Collection Certificate IV.[68] See R11, T38 and T39.[69] R1 [60], read with Respondent’s written outline of submissions at [20(b)].