Doyle and Telstra Corporation Limited (Compensation)
[2025] ARTA 182
•19 February 2025
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 14Statement 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 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 ground
No pain at time
Had 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.
On 6 December 2019, a determination was made under s 37(1) of the SRC Act deciding that the Applicant should undertake a new rehabilitation program, with an updated goal of obtaining new employment, in a new role and with an employer external to the Respondent.[9] The determination noted that the Applicant had been cleared by his treating doctor, Dr Kuan, to work 7.35 hours a day, 5 days a week.[10]
[9] R11, T7.
[10] R11, T7, page 33.
From December 2019 to January 2022, rehabilitation programs were developed and updated, by way of alteration, in consultation with the Applicant and his general practitioner,[11] to assist him in achieving his goal of obtaining a new role with a new employer.
[11] See R11, T9 to T39.
Each alteration to the Applicant’s rehabilitation program was made by way of determination under s37(1) of the SRC Act, in accordance with his medical restrictions at that time.[12] These determinations required the Applicant to comply with the programs and engage in any sourced work (or work trial) opportunities identified as suitable by the Applicant or the rehabilitation provider.
[12] Which, substantially and generally, certified the Applicant fit to undertake pre-injury hours with modified duties of lifting up to 8 kilograms. The s 37(1) determinations are at R11, T7, T10, T13, T16, T19, T21, T24 and T38.
Despite the numerous alterations to the program over this time, the program requirements remained essentially the same (as did the program goal).[13] Broadly, the Applicant was required to:
(a)Engage in vocational counselling and assessment with Konekt (the Respondent’s rehabilitation provider) to assist with identifying alternative employment options;
(b)Engage with Konekt for job seeking activities including resume development, cover letter development, interview training, job seeking skills and injury disclosure training;
(c)Job hunt (applying for three to five jobs per week and submitting regular job logs), and provide evidence of doing so to Konekt;
(d)Engage in work trials (including a graded return to work) and work experience as transitional steps to returning to work in a different workplace;
(e)Accept any job placements or job offers that are presented and within medical capacity;
(f)Attend monthly job seeking reviews with Konekt; and
(g)Be actively engaged in the vocational process, openly discussing concerns, responding to all telephone calls and emails within 48 hours and keeping the Respondent and Konekt updated on progress.
[13] Which was to return the Applicant to gainful employment in suitable duties, with a new employer.
In its Statement of Facts, Issues and Contentions,[14] the Respondent has set out in detail factual matters relating to the conduct of the rehabilitation programs and the Applicant’s (limited, in the Respondent’s view) participation in them. Notably:
[14] R1 [2] to [57].
(a)The Applicant worked as a patient transfer driver for Graylands Hospital for 7.5 to 15 hours per week. The Applicant indicated to Konekt that he sourced this role through a personal contact and did not want Konekt or the Respondent to speak with his employer regarding his return to work, his ongoing claim, his ability for an increase in available hours of work, or the prospect of permanent employment.
(b)There were instances recorded of Konekt being unable to successfully contact the Applicant and the Applicant not providing job logs in their entirety.
(c)On a number of occasions, draft program alterations were provided to the Applicant for his review and feedback, which he did not provide and the altered programs were finalised without this taking place.
(d)Regarding the proposed retraining option of the Applicant commencing a Certificate IV in Pathology Collection with Pathwest,[15] the Applicant indicated he was unwilling to engage in this this course if the learning days conflicted with his current employment as a driver and he was unwilling to discuss changing his days of employment to allow his participation in the pathology collection course.[16]
(e)In November 2021, the Applicant indicated to Konekt that he would only apply for three jobs per week and not five, as required.[17] It was then agreed the Applicant would apply for five jobs per week, three of those being of his own choosing and two jobs identified by the rehabilitation provider. The following week, the Applicant indicated he would not be to undertake eight of the 10 vacancies identified as suitable for him (for reasons including that he did not have the transport to do so) and that he had applied for two roles on Seek.[18] The Applicant also applied for roles that involved activities that exceeded his medical restrictions or required qualifications that Konekt was not aware he held, notably a forklift ticket.
(f)On 9 December 2021, the Applicant was issued a non-participation warning letter advising him that he may not be meeting his participation obligations, setting out the required steps for ongoing compliance with the program and advise that if he failed or refused to comply with the requirements of his program without reasonable excuse, his workers compensation benefits under the SRC Act (except medical treatment costs) may be suspended until he complied.
(g)On 16 December 2021, the Applicant was issued a formal warning from the Respondent, advising that he may be in breach of his obligations under section 37 of the SRC Act, requesting he was comply with his rehabilitation program and to immediately complete job logs, follow up on applied jobs and enrol for a pathology collection course.[19] The Applicant did not respond and the Applicant was reminded that the required actions had fallen overdue and that his benefits could be suspended under s 37(7) of the SRC Act.[20] The Applicant ultimately responded detailing the difficulties he faced and reservations he had about the various actions he was yet to complete.[21]
(h)In late January, the Applicant had a phone discussion with Mr Nathan Vagnoni,[22] regarding one or two identified employment opportunities.[23] On 7 February 2022 and 10 February 2022, Mr Vagnoni attempted to contact the Applicant regarding this and other matters of non-compliance with the rehabilitation program, having not heard from the Applicant since late January 2022. [24]
(i)In February 2022, the Applicant attended an interview with Perth Blinds for a potential work trial. Perth Blinds provided feedback to Konekt that the Applicant had attended the interview in a t-shirt, shorts and sandals, did not ask any questions regarding the job or company, advised that he is used to working outdoors, that he did not want to give up his current 2 day per week job.[25] Even so, Perth Blinds were prepared to offer the Applicant a 1 day unpaid work trial with a view to a full-time paid role if interested.[26] The Applicant advised he would decline the opportunity as it ‘was not for him’.[27] Perth Blinds proceeded to offer the Applicant a work trial on 11 March 2022,[28] which was communicated to the Applicant on 15 March 2022. The next day, the Applicant advised Konekt that he could not work at Perth Blinds as he considered it a factory operation that was not a safe place to work.[29]
(j)The work trial offer lapsed and three further work opportunities were identified. Particulars of other roles were also given with the Applicant to advise which roles were of interest. On 30 March 2022, a case manager from Konekt confirmed the Applicant advised that he had not seen any of the emails regarding these matters, in any event he was not interested in ‘working for free’ and he declined the opportunity to meet with one of the potential employers (Galvins Plumbing Supplies). An interview for this work trial was arranged and the details communicated to the Applicant via email, text message and voicemail. The Applicant did not return these calls or messages and did not attend the interview. In response to Mr Vagnoni’s email expressing his concerns regarding the Applicant’s participation in the rehabilitation program and his request for the reasons for not completing the required activities, the Applicant,[30] the Applicant said he had never agreed to apply for five roles per week and to offer him a work trial that would cost him financially would not help him out whatsoever.[31]
[15] This option having been identified as within the Applicant’s work capacity at that time, as a course that would support his competitiveness and capacity to secure employment as a pathology collector and would provide additional employment opportunities (R11, T24).
[16] The Tribunal understands that the Applicant applied for a position in this course with North Metropolitan TAFE, however the course was never undertaken.
[17] Similarly, in December 2021 the Applicant advised Konekt he was not prepared to apply for a job vacancy for Australian Clinical Labs as he was not prepared to work on week nights and weekends (R11, T31).
[18] R11, T27, page 137.
[19] R11, T30, pages 150 to 151.
[20] R11, T30, pages 152 to 153.
[21] R11, T31.
[22] Health, Management & Rehabilitation Consultant for the Respondent.
[23] R11, T40.
[24] R11, T40, T41 and T42,
[25] R11, T46.
[26] R11, T45.
[27] R11, T45.
[28] R11, T49, p 220. The work trial was for work 1 day per week that would not impact on the Applicant’s current employment and days of attendance, and to commence as of 21 March 2022.
[29] R11, T53.
[30] R11, T59.
[31] R11, T59.
On 19 April 2022, the Respondent found that the Applicant had failed, without reasonable excuse, to undertake the rehabilitation program dated 6 December 2019 and that being so, determined that:
(a)Any entitlement the Applicant may have to compensation under 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 that date, and that the suspensions would continue until such time that the Applicant:
(a)commenced active job seeking as required by his rehabilitation program; and
(b)liaise with Konekt and Galvins Plumbing Supplies to reschedule his non-attended work trial meeting or, should this position no longer be available,
(c)continue to work with Konekt to identify a suitable work placement, arrange and attend a work trial meeting and commence engagement in a return to work program in this work trial
(the Suspension Decision).[32]
[32] R11, T60.
On 6 May 2022, Mr Vagnoni advised the Applicant his job seeking logs continued to be non-compliant and asked him whether he had reached out to Galvins Plumbing Supplies to arrange a meeting to commence a work trial placement.[33] On 10 May 2022, the Applicant indicated to Mr Vagnoni that he had not done so as he did not believe someone of his experience needs a work trial.[34]
[33] R11, T62.
[34] R11, T62.
On 17 May 2022, the Applicant requested reconsideration of the Suspension Decision.[35] In doing so, he submitted:[36]
(a)After he ceased working for the Respondent, he reached an agreement with his manager and others that he only needed to look for one job per week.
(b)He should not have to engage in work trials due to his age and experience, because there is no guarantee of paid employment and he would have to “incur the cost” including his “expenses of travelling” to participate.
(c)Ringing around employers “at his own expense” is not something he can afford to do.
(d)Applying for more than three jobs is “really difficult” because “most of the current vacancies are for skilled workers and the jobs that I can apply for are restricted to the lower level employment, which in monetary matters would make me worse off financially which is no compensation for someone in my position.”
[35] R11, T64.
[36] R11, T64, p 308 as extracted from the Respondent’s written outline of submissions provided at hearing, at [12].
On 16 June 2022, the Respondent made the Reviewable Decision.[37]
[37] R11, T67.
On 11 June 2022, the Applicant applied to the Administrative Appeals Tribunal[38] for review of the Reviewable Decision.[39] In doing so, the Applicant gave the same reasons for his application for review as he did in his request for review of the Suspension Determination.[40]
[38] As it was then known. On 14 October 2024, a new federal administrative body called the Administrative Review Tribunal commenced, replacing the Administrative Appeals Tribunal. The Administrative Appeals Tribunal has ceased operations, with all current matters now transferred to the Administrative Review Tribunal. References to ‘the Tribunal’ in this decision refer to whichever of the Administrative Appeals Tribunal or the Administrative Review Tribunal was in operation at the relevant time.
[39] R11, T1.
[40] R11, T1, page 17.
LEGISLATIVE FRAMEWORK
The Respondent’s liability to pay compensation in respect of medical expenses is set out in s 16 of the SRC Act, which provides:
16 Compensation in respect of medical expenses
(1) Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.
Pursuant to s 37 of the SRC Act, where an employee suffers an accepted injury, a rehabilitation authority may direct the employee to undertake a rehabilitation program:
37 Provision of rehabilitation programs
1A 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.
2If 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
…
3In 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.
…..
Relevantly, subsection 37(7) of the SRC Act provides for the employee’s compensation to be suspended where an employee refuses or fails to undertake a prescribed 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.
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.
When taken his documented reasons for his reservations regarding the Pathology Collection Certificate IV course, namely that he would need to use public transport to attend and it would come at an expense to him,[42] the Applicant said he had never used public transport until recently.
[42] R5, page 115.
As to his having told Dr Flahive that he has not driven since around 2017, that he does not drive his wife’s car and normally gets lifts everywhere,[43] the Applicant said that he still does not drive as the risk is too high.
[43] R4, page 74 (page 8 of report).
When taken to other matters he had reported to Dr Flahive (as extracted below), the Applicant said that this was all still the case, namely:[44]
(a)Most nights he only sleeps for about three hours.
(b)He does not participate in any household chores, he has never cooked or done the dishes. His wife performs these tasks.
(c)He does not do any gardening.
(d)He generally spends his days by getting up at about 2.00am, reading a book or watching television, and then when his wife gets up and leaves for work, he will go around to visit his daughter at about 8.00am.
(e)While he has been told he is allowed to lift up to 8kg, he is uncertain what he would lift of that weight, with him reporting that he does not lift his four-month-old grandchild.
(f)He generally does not go out much, he has no hobbies and most of the time will be spent visiting his daughter and her two children, or he may go and visit one of his three sons.
[44] R4, p 75 (page 9 of report).
When asked, the Applicant said he does not believe that he should have to apply for jobs, as doing so is a drain on his financial resources. The Applicant added that he cancelled his home internet and mobile telephone a few years ago, has no home telephone, does not use public Wi-Fi and has been communicating only by post for at least the last two years.[45]
[45] See also R11, T1, p 17.
The Applicant also said that he does not believe that he should have to work nights or weekends and stated that he wanted a job comparable to the one that he had. As to the letters his GP is recorded to have sent him by email,[46] the Applicant said he never received these, nor did he receive ePrescriptions sent to his mobile phone number.[47]
[46] See R9, pp 100 and 101, for example.
[47] See R9, p 102, for example.
The Applicant explained that if someone needs to contact him, they can reach him by telephoning his wife, who will then call him at home. The Applicant said the only way people can contact him directly is to knock on his door or send him a letter.
When asked why he had applied for a job as a patient transfer driver in 2019, this being inconsistent with the Applicant’s evidence that he cannot drive, the Applicant conceded he had told Konekt not to contact Graylands Hospital and had given Graylands Hospital the impression that he was ready and willing to be a driver, also attaching his heavy vehicle driver’s licence to his job application.
When it was put to him, the Applicant accepted that he had been assessed by a nurse as physically fit for the driver position at Graylands Hospital, the nurse not having been concerned about any sleep or shoulder issues.[48] The Applicant also accepted that he did go on to perform the role.
[48] R10, p 136.
The Applicant did not accept, however that he worked as a driver for Graylands Hospital in 2019 while still receiving full compensation benefits from the Respondent at that time (prior to his redundancy in 2019).
While the Applicant was able to be offered shifts at Graylands Hospital from 2019,[49] he said that he cannot remember exactly when he started but gave evidence that he does still work there.
[49] R10, p 137.
When taken to the condition of his employment with Graylands that he requires written approval to continue any other employment arrangements,[50] the Applicant said that he had not done this, that he did not want Graylands Hospital and Konekt to engage with each other or for Graylands to know that he had been receiving workers’ compensation.
[50] See, for example, R10, p 152.
As to his GP consultation record dated 21 July 2022 that he worked one day per week driving from one hospital to another with no issues,[51] the Applicant said that he was doing “script pick ups” at that stage and he does not perform those duties now. The Applicant said that about one year to one year and a half ago, he “told them he was having problems” and “now does the post.” The Applicant said that the proposition that he has not driven since the injury (as told to Dr Flahive), is wrong.
[51] R8, p 85.
The Applicant was taken to the following extract from an email dated 8 April 2022, regarding his employment with Graylands Hospital:[52]
Your conversion to permanent employment will commence on 11/04/2022. You will be required to work 16 hours per fortnight as rostered across any of the 24 hours of the day and the 7 days of the week, in accordance with the roster published from time to time by the Employer.
[52] R10, p 153, see also R10, p 156, where this is formalised in the Applicant’s contact of permanent employment dated 11 April 2022.
When asked, the Applicant accepted that he had told Konekt that he would never work nights when he had agreed to work nights and weekends for Graylands Hospital and indeed would have done so.
Surveillance evidence
At the hearing, the Tribunal viewed surveillance evidence of the Applicant obtained from a surveillance period commencing 22 December 2023 and ending 16 January 2024.
During this period, the Applicant was observed performing a number of tasks over which he was questioned during cross examination. Those tasks, and the Applicant’s responses to having being observed doing them, were as follows:
(a)28 December 2023 - The Applicant was observed reversing his wife’s car out of the driveway, driving the vehicle on the road and then turning right into Graylands Hospital. Th Applicant accepted that he was driving himself into work.
(b)29 December 2023 – The Applicant was observed using a hose with his right arm. The Applicant accepted that his evidence that he does do not any gardening[53] is incorrect. The Applicant was against observed entering the drivers’ seat of his wife’s car and later pulling in to Graylands Hospital. The Applicant said that he would drive to work, then his wife, who was also in the vehicle on this day and the previous day, would drive on to her workplace from there. The Applicant accepted that the evidence he provided regarding not driving at all was false and he said that he forgot that he drove.
(c)30 December 2023 – The Applicant was observed carrying a child of approximately three or four years old, and also pulling a rubbish bin from the verge into his garage. The Applicant again accepted that these were tasks that, according to his evidence, he was unable to perform.
(d)8 January 2024 - The Applicant was observed driving his son’s car to Graylands Hospital, with his wife riding in the passenger side. The Applicant said on this occasion, he dropped his wife off at work first, then parked at Graylands Hospital for the rest of the day. As to his evidence that he did not have transport for prospective employment because his wife needed a car for work,[54] the Applicant said she did not need a car on that particular day.
(e)10 January 2024 – The Applicant was observed driving a third car.
(f)15 January 2024 – The Applicant was observed entering, reversing and driving his son’s car, with his wife in the passenger seat. The Applicant was observed arriving at work with his wife no longer in the car and leaving work later that day in the same car.
[53] See [33(c)] above.
[54] See [28] above.
When it was put to the Applicant that his evidence that he had taken a lift to and from work from a friend for every work shift, and that if his friend was away or sick, he did not go to work himself, he said it has been “a mistake.”
The Applicant’s evidence concludes with the Respondent’s submission that given the extent to which the surveillance evidence demonstrates the Applicant’s “mistakes” regarding his evidence that he had not driven to work, that he had not lifted a child greater than 4 months old and he had not performed gardening tasks, for example, that the Tribunal is entitled to have real reservations about his evidence. The Applicant said that while he lied about these matters, he disagreed that the Tribunal should be so entitled.
Dr Martyn Flahive
On 6 November 2023, at the Respondent’s request, the Applicant attended an in-person medical examination with Dr Flahive. In his related report dated 23 February 2024, he described the Applicant’s current diagnosis as ‘non-specific shoulder pain’.[55]
[55] R4, p 88, p 22 of report.
Dr Flahive also expressed the following opinions:[56]
(a)the Applicant is fit to undertake full-time work and that an appropriate lifting restriction for him would be 10kg – 15kg, and occasionally lifting up to 18kg;
(b)the Applicant is fit to engage in work at Perth Blinds and Galvins Plumbing;
(c)the Applicant is fit to undertake work in a pathology collection centre;
(d)the Applicant is fit to engage in a wide range of employment, including stores work, retail work and factory work; and
(e)there was no cogent reason as to why the Applicant does not have the medical or physical capacity to engage in full-time work or the work trials as have been proposed.
(f)On reviewing the rehabilitation reports, there appears to be significant issues in relation to his volition to return to the workforce.’
[56] R4.
Dr Flahive reported:[57]
Certainly, with his experience of having worked in the plumbing trade, in addition to having spent some years for Telstra as a technician, Mr Doyle would have a reasonably good insight in relation to general hardware, and in my view would have the physical capacity to undertake work in a hardware outlet or plumbing supplies warehouse, as has been offered. Additionally, he would likely be capable to undertake other retail work, such as in automotive supplies, garden and reticulation supplies, hardware and plumbing supplies, and a number of other roles, including factory and warehouse work. It would appear from his presentation that there may be issues in relation to motivation in engaging in his returning to full time employment, although in my view there is no firm medical reason as to why Mr Doyle does not have the capacity to return to fulltime work. Mr Doyle does present a number of barriers in terms of engaging in work and getting to work trials and driving. However, they are largely management issues, I would expect that they could have easy been investigated and addressed over the past two years.
(Emphasis added).
[57] R4, pages 87 to 88, pages 21 to 22 of report.
In relation to the Applicant’s reporting that he no longer drives a vehicle, or has access to a vehicle, Dr Flahive’s opinion is that this is generally not a significant barrier that cannot be overcome, particularly with access to public transport.[58]
[58] R4, page 88, page 22 of report.
In relation to the Applicant’s reported sleep issues, Dr Flahive reported:[59]
… if he is nodding off, then that would be indicative of a more significant medical issue such as sleep apnoea and that would need to be investigated by his general practitioner separately with a sleep study. It would be unwise to attribute such a symptom to his shoulder condition, in light of his clinical findings and the interval since the surgery. Nonetheless, such conditions are generally managed and generally do not prevent a return to work. As noted, the issue is not interfering with his work at Graylands and perplexingly has not been raised with his generally [sic] practitioner.
[59] R4, page 88, page 22 of report.
Dr Flahive noted in his report a number of discrepancies between the Applicant’s self-reporting and the clinical findings:[60]
As noted in the investigations, Mr Doyle was found to have largely degenerative changes within his rotator cuff on both shoulders and associated degenerative labral tearing.
Follow up imaging confirmed that his rotator cuff was intact on the right, and thus there would be an expectation that he would have a positive prognosis.
At my review, Mr Doyle was noted to have a good range of cervical spine movement, and clinically, there is little to suggest that his pain is arising from his cervical spine.
Similarly, examination of the shoulders revealed an almost normal range of shoulder movement, good rotator cuff strength, and no firm signs of impingement.
As such, it is difficult to explain Mr Doyle’s continuing shoulder pain and reported significant disability.
…
Certainly, there are a number of discrepancies between his reported disability and the clinical findings, as well as his requirement for treatment. Objectively there is little in the way of significant disability in terms of his shoulders, and with the symptoms as presented and the clinical findings…
(Emphasis added).
[60] R4, page 87, page 21 of report.
In his supplementary report dated 7 November 2024, provided following Dr Flahive’s review of the surveillance video footage and related report, he wrote:[61]
(a)The fact that the Applicant regained his capacity to drive either at or subsequent to his review by Dr Flahive raises the possibility that the Applicant was not entirely candid in relation to that capacity when Dr Flahive had the opportunity of reviewing him.
(b)Having viewed the video surveillance footage, there does not appear to be any requirement for the Applicant to be limited in terms of his driving or selection of suitable work in terms of location and his previously provided opinions remain unchanged.[62]
(c)The explanation for the Applicant’s non-specific shoulder pain is unclear and there is no firm medical reason for any restriction on him engaging in work or other activities.
[61] R12.
[62] See [50] above.
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)].
Further, the Respondent contends:[70]
(a)the Applicant did not have a reasonable excuse for his failure or refusal to comply with the requirements of the rehabilitation program/s provided for him; and
(b)accordingly, his rights to compensation under the SRC Act (excluding medical expenses), and to institute or continue any proceedings under the SRC Act in relation to compensation, are suspended from 19 April 2022.
[70] R1 [61] and [62], read with Respondent’s written outline of submissions at [20(c)].
The Respondent made some additional submissions regarding how the Tribunal ought to approach the Applicant’s evidence and self-reporting, which the Tribunal notes with agreement, being (briefly):[71]
[71] See Respondent’s written outline of submissions at [21] to [30].
(a)The Tribunal should not accept assertions made and self-reporting by the Applicant at face-value and that are not supported by cotemporaneous documentary evidence. The Tribunal should only accept evidence from the Applicant where consistent with objective contemporaneous reporting or objective medical evidence. This is due to the substantial inconsistencies between what the Applicant reported to Telstra, Dr Flahive and the Tribunal.
(b)The Applicant has not accurately reported his activities and level of incapacity. The Tribunal notes that this matter is not in dispute.
(c)The Applicant asserted that he is unable to drive, that he does not have the use of a vehicle, that he did not drive his wife’s car, that his role at Graylands did not involve driving, that he only went to work at Graylands if his friend was available to drive him and that this was the only manner in which he travelled to work.
(d)Contemporaneous records, surveillance material and the Applicant admissions during cross-examination (albeit that he was mistaken in making these assertions, rather than his having lied) demonstrate his reporting to be inaccurate.
(e)Records obtained indicated that until August 2024, the Applicant’s position at Graylands was as ‘Driver,’ that his GP has always considered him as fit to drive and surveillance material shows the Applicant having driven on four occasions for at least 30 kilometres, to Graylands Hospital.
(f)The Applicant admitted having misrepresented his driving history to Dr Flahive.
(g)The Applicant reported a reduced lifting capacity, equivalent to the weight of a child of less than four months old, and was viewed on surveillance footage being able to bend and carry a toddler age child. At hearing the Applicant admitted to not accurately describing his lifting capacity.
(h)The Applicant reported that he does not do any gardening, revealed in the surveillance material to be inaccurate.
(i)The Applicant indicated he was using pain medication and Endep, however these were observed by Dr Flahive to be out of date and medical records show the Applicant was last prescribed pain medication in March 2019 and medication to aid sleep since June 2021.
(j)The Applicant admitted lying to Graylands Hospital about not having an injury and telling Telstra’s rehabilitation team that he did not consent to them contacting Graylands hospital as he did not want to jeopardise his chances of obtaining the role.
Whether the Applicant continues to suffer from Bilateral Shoulder, Arm and Neck Soft Tissue Muscle Strain
The Tribunal cannot be satisfied that the Applicant continues to suffer from the Injury, as there is no evidence (other than the Applicant’s own self-reporting) to support this being the case. The Applicant reported ongoing bilateral shoulder pain to Dr Flahive. However, Dr Flahive’s opinion is that the Applicant suffers from non-specific shoulder pain and there is no evidence that the Injury remains, either on the investigations or from Dr Flahive’s examination of the Applicant. Further, Dr Flahive was of the view there was no physiological explanation for the Applicant’s reported symptoms and no cogent reason why he would have the capacity to engage in the full time work or in any of the work trials identified as suitable and offered to him.
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 Reviewable Decision;
The Applicant’s right to receive compensation under s 16 of the SRC Act ought to have been maintained following the Suspension Determination only if he continues to suffer from the Injury.
This is because a suspension imposed under s37(7) of the SRC Act does not operate to suspend and employee’ right compensation for the cost of medical treatment ‘that is payable under s 16.’[72]
[72] Section 37(7A) of the SRC Act. See [23] and [24] above.
As the Tribunal has determined that the Applicant no longer suffers from the Injury, there is no entitlement to compensation under s 16 of the SRC Act and his right to claim compensation ought not to have been preserved.
Whether the Applicant refused or failed to undertake the rehabilitation program for the purpose of s 37(7) of the SRC Act
It is not in dispute (and indeed, at hearing the Applicant conceded it to be the case) that the Applicant refused or failed to undertake the rehabilitation program for the purpose of s37(7) of the SRC Act.[73]
If so, whether the Applicant’s refusal or failure to undertake the rehabilitation program was “without reasonable cause” for the purposes of s 37(7) of the SRC Act
[73] See requirements of the Applicant’s rehabilitation program at [14] above.
The Tribunal notes and adopts the principles and authorities referred to by the Respondent in assessing the reasonableness of the Applicant’s excuse for failing to undertake his rehabilitation program (in its original form, and in its numerous versions altered over time) made under s 37(1) of the SRC Act.[74]
[74] See Respondent’s written outline of submissions provided at hearing at [17] and [18].
Essentially, the Tribunal’s task is to consider and assess the Applicant’s explanation for failing to participate in the rehabilitation program as well as an assessment of the tasks he was required to perform at this time.
The Applicant submitted that his refusal or failure to undertake the rehabilitation program was “reasonably caused” by his verbal agreement with Mr Broad in November 2019 that he would only need to look for between one and three jobs per week, rather than the five jobs per week detailed in his rehabilitation program.
The Applicant did not at any time seek to challenge or remedy his dissatisfaction with this or any of the other requirements of the rehabilitation programs by seeking review of any of the numerous s 37(1) determinations that were made. Therefore, his claims regarding the number of jobs he believed he was required to apply for each week are irrelevant and do not constitute a reasonable cause for his refusal or failure to undertake the rehabilitation program for the purposes of s 37(7) of the SRC Act.
While not expressly submitted by the Applicant, and for completeness, the Tribunal finds that the Applicant similarly has no reasonable excuse for refusing or failing to undertake the rehabilitation program in a number of other respects:[75]
[75] Noting the Respondent similarly took this view at [42] to [54] of its Outline of Submissions.
(a)The Applicant’s refusal or failure to apply for jobs or work trials identified as suitable.
(b)Due to his claimed injuries, despite these roles being within his medical restrictions, does not constitute a reasonable excuse in circumstances where Dr Flahive considered the Applicant was fit to undertake full time work with appropriate the restrictions in place.
(c)Due to not having transport to travel to job or work trial locations, does not constitute a reasonable excuse where Dr Flahive considered driving would be useful to the Applicant’s return to work and where he considered the Applicant was fit to do so.
(d)Due to the requirement that these roles may involve weekend or night shifts, in circumstances where he agreed to do so when accepting the permanent position of ‘Driver’ and gave evidence that he indeed would have done so.[76]
(e)Due to his having extensive work experience to date, and his view that performing work without being paid (in a work trial)[77] would result in a loss of income and render him unavailable to work at Graylands Hospital for one day per week, does not constitute a reasonable excuse where:
(ii)The work trial with Perth Blinds, while unpaid, was met with the Applicant’s receipt of incapacity payments in any event;
(iii)Any shortfall in payment if the Applicant had commenced paid work would have been met by Telstra;
(iv)There was no objective basis to the Applicant’s subjective opinion that Perth Blind’s work premises was unsafe;
(v)Dr Flahive considered the Applicant was fit to undertake work at Perth Blinds and with other employers,[78] his ability to do so demonstrated by his ongoing employment with Graylands Hospital.
(f)Due to his disappointment in losing his role at Graylands should he apply for suitable retraining,[79] and his preference for keeping his role there, and his being limited to public transport to travel to and from the course is not a reasonable excuse where he has capacity to drive, he has the use of a vehicle and where he would face a costs burden if he discontinued working at Graylands Hospital in circumstances where he was still being paid compensation during this period.
(g)For completeness, the Applicant’s failure to complete job logs in accordance with the requirements of his rehabilitation program or to undertake suitable retraining,[80] was not addressed by the Applicant and hence need not be by the Tribunal.[81]
[76] See also [43] and [44] above.
[77] For example with Perth Blinds
[78] For example, Galvins Plumbing and in a pathology collection centre had he completed the related course that was proposed.
[79] The relevant example being the Pathology Collection Certificate IV course.
[80] The relevant example being the Pathology Collection Certificate IV course.
[81] This is because there is no claimed “reasonable excuse” to consider and in turn the power under s 37(7) of the SRC Act does not arise.
CONCLUSION
For the reasons given above, the Tribunal has found that:
(a)The Applicant no longer suffers from the Injury.
(b)The Applicant’s right to receive compensation under s 16 of the SRC Act was improperly preserved by the Suspension Determination and the Reviewable Decision.
(c)The Applicant refused or failed to undertake the rehabilitation program for the purpose of s 37(7) of the SRC Act.
(d)The Applicant’s refusal or failure to undertake the rehabilitation program was “without reasonable cause” for the purposes of s 37(7) of the SRC Act
DECISION
As such, the Tribunal:
(a)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
(b)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]......................................................
Associate
Dated: 19 February 2025
Date of hearing: 20 November 2024 Applicant: Self-Represented Counsel for the Respondent:
Solicitor for the Respondent:
Ms Kate Slack of Counsel
Ms Rosemary Waldron-Hartfield, Moray & Agnew
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