Evans and Comcare
[2008] AATA 1147
•22 December 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 1147
ADMINISTRATIVE APPEALS TRIBUNAL )
) 2007/0068 2008/3282
GENERAL ADMINISTRATIVE DIVISION ) Re DONNA ROSE EVANS Applicant
And
COMCARE
Respondent
DECISION
Tribunal Ms G Ettinger, Senior Member
Dr I Alexander, MemberDate22 December 2008
PlaceSydney
Decision The Tribunal varies the reviewable decision to suspend Ms Evans’ rights under section 37(7) of the Safety Rehabilitation and Compensation Act 1988, and in substitution therefor, the Tribunal finds that Ms Evans had a reasonable excuse not to continue to undertake the 2006 RTWP after 25 July 2006.
The claim for permanent impairment made in matter 2008/3282 was withdrawn by the Applicant during the Hearing, and is hence finalised.
Costs are awarded pursuant to section 67(8) of the Act and the AAT’s Practice Direction.
..................[sgd]............................
Ms G Ettinger
Senior Member
CATCHWORDS
COMPENSATION – Applicant has accepted claim for work caused PTSD on and from 30 June 2005 – appeal against section 37(7) SRC Act 1988, suspension of liability by Respondent – suspension lifted 2 January 2007 - Applicant has now left Commonwealth service as a result of medical invalidity – claim for permanent impairment withdrawn during hearing after hearing of medical evidence - whether reasonable excuse for failure to refuse or fail to undertake the RTWP – Ms Evans had a reasonable excuse - decision under review set aside.
Safety Rehabilitation and Compensation Act 1988 s 37
Australian Postal Corporation v Forgie (2003) 130 FCR 279
Re Perrin and Telstra Corporation Ltd (AAT 9922, 22 December 1994)
Australian Postal Corporation v Pascoe [2003] FCA 390
Pascoe v Australian Postal Corporation (2004) 77 ALD 464
REASONS FOR DECISION
22 December 2008 Ms G Ettinger, Senior Member
Dr I Alexander, Member
INTRODUCTION
1. Ms Donna Rose Evans, aged 42 years, is the Applicant in the matters before the Tribunal. She worked for Centrelink from April 1999. She was diagnosed with Post Traumatic Stress Syndrome, (PTSD) after working with her former employer, Barnardos in 1997, following an incident involving a young man there. She claims that following cessation of employment with Barnardos, her symptoms resolved, and she did not suffer from symptoms of PTSD when she joined Centrelink.
2. However, on 29 June 2005 an incident occurred with a customer during the course of Ms Evans’ employment at Centrelink during which she claims to have suffered psychological injury.
3. Liability for PTSD arising from that incident was accepted by the Respondent, Comcare, on and from 30 June 2005. Ms Evans was then certified unfit for work by her doctors for various periods.
4. There were several attempts in 2005 and 2006 to have Ms Evans participate in rehabilitation, and a graduated return to work program, which she eventually commenced in June 2006, (RTWP), but discontinued during its currency. As a result, the Respondent suspended her compensation pursuant to section 37(7) of the Safety Rehabilitation and Compensation Act 1988 (the Act).
5. We found that pursuant to section 37(7) of the Act Ms Evans did not have a reasonable excuse for not attending work on 30 June 2006, but we were satisfied that she had a reasonable excuse for discontinuing the RTWP after her last attendance at work on 25 July 2006, and we are satisfied that her rights to compensation should not have been suspended. Our reasons follow.
6. By way of completeness, we noted that on or about 18 December 2006 the Applicant attended upon her treating General Practitioner to discuss and endorse a further proposed RTWP. Following those discussions, Centrelink forwarded Ms Evans correspondence dated 2 January 2007 lifting the suspension of compensation entitlements under section 37(7) of the Act. She returned to work during 2007, but was retired on medical grounds in December 2007/January 2008.
LEGISLATIVE CONTEXT and ISSUES BEFORE THE TRIBUNAL
7. Section 37(1) of the Act authorises the Respondent to make a determination that an employee should undertake a rehabilitation program, while section 37(3) of the Act sets out the matters to be taken into account when formulating the plan. It not in issue before the Tribunal that the rehabilitation plan for Ms Evans had been correctly formulated, and was authorised.
8. Section 37(7) of the Act is in these terms:
37 Provision of rehabilitation programs
…
(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.
…
9. The issue then before the Tribunal was whether the Applicant had a reasonable excuse for refusing or failing to undertake the 2006 RTWP, given her non-attendance at work on 30 June 2006, and her discontinuation of the RTWP after her last attendance at work on 25 July 2006.
10. We noted that Ms Evans initially claimed for permanent impairment pursuant to sections 24 and 27 of the Act (matter 2008/3282). The medical evidence we heard pointed to Ms Evans’ condition not having reached maximal medical improvement, following which she withdrew her claim for permanent impairment. We did not, accordingly, have to make a decision regarding the claim for permanent impairment.
WHETHER MS EVANS HAD A REASONABLE EXCUSE FOR REFUSING OR FAILING TO PARTICIPATE IN THE 2006 RTWP
11. A decision about what constitutes a reasonable excuse for either refusing or failing to undertake the RTWP must focus on the state of mind and state of knowledge of the employee at the time of that failure, and the circumstances surrounding that employee’s failure or refusal to undertake the program. In Ms Evans’ case this was her non-attendance at Centrelink on 30 June 2006, the tenth day of the second week of the RTWP, and her non-attendance after her last attendance at work on 25 July 2006.
12. The relevant RTWP is at Exhibit R2/T67, and there is no argument that it was a legitimate Plan formulated in consultation with the relevant parties including Ms Evans’ medical advisors, that it dealt with a graduated increase in hours of work over a period of eight weeks, and duties Ms Evans was to perform including restricting her from contact with customers.
13. We were mindful from the decision of Australian Postal Corporation v Forgie (2003) 130 FCR 279 of the three tiered decision making process relating to jurisdiction of the Tribunal and the fact section 37(7) is a self-executing section. Mr Richards referred us to the case of Re Perrin and Telstra Corporation (AAT 9922, 22 December 1994), making submissions regarding similarities between Perrin and Ms Evans’ case, and noting that in Perrin it was held that his actions were not unreasonable because he had been acting on medical advice, and that this was also the case in regard to Ms Evans.
14. Mr Best submitted that section 37(7) required a plain common sense interpretation. He submitted, referring also to Perrin, and to paragraphs 19 and 67 of that judgment, that Ms Evans’ circumstances were quite different in that the Tribunal had found that Perrin was not rational, and suffered a disordered mind, whereas Ms Evans suffers anxiety, and has a constellation of symptoms which could not be said to be similar.
15. Mr Best also referred to other cases in making his submissions. They were Australian Postal Corporation v Forgie (supra) and Pascoe v Australian Postal Corporation (2004) 77 ALD 464.
16. We noted from the case law that the decision of the Tribunal regarding what is reasonable in the circumstances requires the Tribunal to consider the circumstances surrounding Ms Evans’ failure or refusal to undertake or indeed continue with the RTWP (Australian Postal Corporation v Forgie (supra). We noted the RTWP was signed off by the interested stake holders including Ms Evans and her doctors, and that it was agreed before the Tribunal that it was a valid Plan. The Tribunal noted also that simple dissatisfaction with the terms of the RTWP after it has been validly formulated cannot constitute a reasonable excuse for refusal or failure to undertake the Plan (Pascoe v Australian Postal Corporation (supra)).
EVIDENCE
17. We had reports and oral evidence from:
·Ms Evans, the Applicant;
·Dr M Henderson, the Applicant’s treating general practitioner
·Dr D Butler, the Applicant’s treating psychiatrist
·Dr E Parmegiani, the psychiatrist who conducted a section 36 assessment of Ms Evan’s work capabilities and was involved in the RTWP;
·Ms JS, the Applicant’s Senior Rehabilitation Case Manager in 2006;
·Ms JJ, the Applicant’s Team Leader on her commencing the RTWP;
·Dr Lewin a psychiatrist, who was engaged by the Respondent for medico-legal purposes and examined Ms Evans on 23 November 2007, and 3 October 2007 (Exhibits R6 and R7).
THE FACTUAL SETTING
Previous injury
18. Ms Evans commenced employment on a full-time basis with Centrelink in April 1999, where she worked as a customer service officer.
19. We have noted that the Applicant’s relevant clinical history includes treatment for psychological injury following employment with Barnardos in 1997. Ms Evans was diagnosed as suffering PTSD and received treatment.
20. We understood from Ms Evans’ evidence that in the period following cessation of employment with Barnardos, she did not suffer any ongoing symptoms. Ms Evans told us that she did not work outside the home between 1997 and 1999, and that when she joined Centrelink in April 1999, the symptoms of PTSD she suffered following the events at Barnardos had resolved.
21. This was confirmed by a number of medical practitioners. Dr Henderson who has been Ms Evans’ general practitioner since 1994, and whose clinical notes were Exhibit A9, noted that Ms Evans’ symptoms resolved a couple of months after leaving Barnardos. Dr Parmegiani, a psychiatrist who examined Ms Evans on behalf of the employer, noted in his reports that Ms Evans had suffered an episode of PTSD in 1997 which had resolved fully and satisfactorily through the use of medication and the passage of time by the time she joined Centrelink.
22. Dr Lewin, a psychiatrist who examined Ms Evans for medico-legal purposes in October and November 2007, also noted that Ms Evans had not undergone psychological or psychiatric treatment after leaving Barnardos and prior to her employment with Centrelink. He opined that Ms Evans’ psychiatric condition was apparently in remission by the time she joined Centrelink in 1999, but considered her earlier experience of PTSD to be a vulnerability factor.
23. We noted that the earliest report of Dr Henderson dated 20 April 2000, which was written approximately a year after Ms Evans commenced employment with Centrelink in April 1999, records as follows: “very impressed with her satisfaction with her present job, with her enthusiasm and commitment and lack of any negative symptoms as to general functioning, self esteem etc.”
The Injury at Centrelink
24. However, the Applicant sustained injury during the course of her employment at Centrelink following an incident that occurred at work on 29 June 2005. In a workers compensation claim form dated 5 July 2005, the Applicant recorded that she sustained injury when a customer became agitated when she asked her for verification regarding her claim. Subsequently, the customer threatened to kill herself, appeared to be trying to hang herself from the ceiling of the office, and cut her own arm with a pen. Later, the customer returned with a male companion who verbally abused Ms Evans.
25. Ms Evans notes in the claim form that in the aftermath of the incident, she suffered from “visions of what I saw, guilt, fear, nightmares, not sleeping, helplessness confusion”. Following the incident, the Applicant was certified by Dr Henderson as being unfit for work for an extended period.
26. Dr A White, a psychiatrist, conducted a psychiatric interview with Ms Evans on 1 August 2005 to assess the nature of her physical and psychological symptoms, and to offer an opinion about her fitness for work with Centrelink. Dr White opined that it was probable that Ms Evans had suffered Panic Disorder rather than PTSD after the events at Barnardos. He commented that the events at Centrelink on 29 June 2005 were at the very least extremely upsetting and sufficient to precipitate or aggravate her pre-existing Panic Disorder, a constitutional disorder.
27. This diagnosis was not supported by the many subsequent medical opinions given regarding Ms Evans, including those of Dr Henderson, Dr Butler, the psychiatrist to whom Dr Henderson referred Ms Evans, and who is her treating psychiatrist, Dr Lewin and Dr Parmegiani. Dr Henderson and Dr Butler diagnosed PTSD, while Dr Lewin described Ms Evans’ as suffering symptoms of anxiety and depression with features of PTSD. In March 2006 before her return to work, Dr Parmegiani described Ms Evans’ condition as resolving symptoms of a Major Depressive Episode which resulted from problems of stress and anxiety not inconsistent with PTSD arising from incidents at work.
28. Mr Rombouts who is a psychologist to whom Ms Evans was referred on 4 July 2005 by Dr Henderson through the Employee Assistance Program, also diagnosed PTSD following the incident at Centrelink on 29 June 2005. We are satisfied from the medical evidence that PTSD was the most appropriate diagnosis, and the medical condition for which liability was accepted by Comcare on 2 August 2005. We prefer that diagnosis to Dr White’s diagnosis of Panic Disorder.
29. Dr Henderson also referred Ms Evans to Dr D Butler, a psychiatrist, in a letter dated 18 August 2005, in which she informed him she had known Ms Evans for about ten years. She mentioned having started Ms Evans on antidepressants. She also stated that he had always found Ms Evans to be “a bit flamboyant and possibly a bit inclined to exaggerate for effect” but added that she had always been impressed by her straightforward approach to bringing up her daughter as a sole parent, and with her ability to cope with problems.
The RTWP and the Issue of the Nine Day Fortnight
30. Since seeing her in August 2005, Dr Butler has become Ms Evans’ treating psychiatrist. He diagnosed acute PTSD caused by the events at work on 29 June 2005. He prescribed antidepressants, and suggested a further six sessions of supportive psychotherapy. On 15 November 2005, Dr Butler reported after those sessions, and opined that Ms Evans still suffered PTSD, but noted that her symptoms varied day to day, and week to week over the past months. He recommended a further ten sessions with himself, and stated that Ms Evans was not fit to return to either full or part time work at the time of reporting.
31. A meeting of Centrelink and rehabilitation personnel took place with Ms Evans and her brother on 28 April 2006. At that meeting Ms Evans’ preferences for office work, and no client contact were noted, as well as her preference to have a new supervisor. These requests were acceded to. We were mindful that not long after that meeting, in a letter to the Senior Rehabilitation Case Manager, Ms Evans’ brother addressed what he saw on behalf of his sister, the need for a secure parking place for her (because she was apprehensive about face to face contact with Centrelink customers), and the provision of a nine day fortnight as part of the RTWP.
32. The report of Ms V Carroll, a psychologist and Mr W Irvine, clinical neuropsychologist dated 10 August 2006 noted that Ms Evans had been referred to their clinic on 2 June 2006 in order to provide support to facilitate a RTW. Ms Carroll saw the Applicant on four occasions, but Mr Irvine took over as disagreement occurred when Ms Carroll complied with Centrelink’s request to see Ms Evans in the mornings. She noted that Ms Evans found that difficult due to her unsettled sleep routine.
33. The psychologists commented in their report that Ms Evans reported Centrelink was trying to get her back to her pre-injury duties and hours, which Ms Evans felt she could not do. The psychologists reported that when Ms Evans first attended at their clinic some 10 months after the incident on 29 June 2005, it appeared that although Ms Evans had suffered considerable anxiety following the incident, “her overriding presenting emotions were anger and outrage at having been left in a vulnerable situation without adequate security, support or care, and with the prospect of returning to that same perceived unsafe situation.” They recommended that her RTW be managed co-operatively with consultation. Mr Rombouts independently agreed with the above procedures regarding the RTWP in his report of 6 April 2006. We could not disagree with those recommendations, but are mindful that the RTW was discussed with Ms Evans and her medical advisors over a period of time, and that by March and in April 2006 she was well aware that a graduated RTWP which included a five day working week was underway.
34. There is no disagreement, and we accept that the 2005 Plan and the RTWP which followed in 2006 were both valid Plans, and took into account the relevant medical evidence, and that they were correctly formulated. Before the 2006 Plan which is at T67/272, was finalised, Dr Butler, Ms Evans’ treating psychiatrist provided a facsimile to AW WorkWise, Rehabilitation Providers dated 4 May 2006 in which he certified the Applicant fit to commence a RTWP as formulated, (commencing with two hours per day, five days per week for the first two weeks). Dr Butler noted that the Applicant would be able to gradually increase her hours and duties over several weeks. Dr Henderson confirmed in her oral evidence that she had been involved, and signed off on the RTWP. The RTWP was dated 5 June 2006 for commencement by the Applicant on 13 June 2006 (Exhibit R2,T67). A weekly meeting was scheduled to review Ms Evans’ progress, but we noted that she reported to Dr Butler she found the meetings confrontational, so he advised her she should not attend. We also noted from the documentation before us that Ms Evans considered she was not sufficiently consulted with regard to the 2006 RTWP which she eventually commenced, but that is not part of the claim before us and we accept that the 2006 RTWP was a valid plan.
35. What happened next is that Ms Evans did not return to work on 13 June 2006, but obtained a medical certificate from Dr Henderson, dated 1 June 2006, who certified her unfit for work from 20 May 2006 to 16 June 2006 (Exhibit A6). The revised start date for the RTWP was 19 June 2006, and for the first two weeks, between 19 June 2006 and 30 June 2006, the Applicant was required, in accordance with the RTWP, to work two hours per day for five days per week.
36. However, on 15 June 2006, before she commenced the RTWP on 19 June 2006, the Applicant provided a workers compensation medical certificate from Dr Henderson altering her work related activities for the period 19 June 2006 to 30 June 2006 to 2.5 hours per day working a nine day fortnight, and attributing the change to a suggestion from Dr Butler (Exhibit A6). That was the source of much evidence and submissions made to the Tribunal which are discussed below.
37. Dr Butler’s further report was dated 23 January 2006. He continued to certify Ms Evans unfit for work, but was optimistic about a graduated return in a position where she did not have customer contact. He followed this up with the completion of a questionnaire about her work capabilities on 4 May 2006.
38. In his report of 29 March 2006, (Exhibit A3), Dr Butler stated that he continued to see Ms Evans every couple of weeks, and noted that there had been a slow but definite improvement in the PTSD.
39. On 7 March 2006 Dr E Parmegiani who is a psychiatrist, conducted a psychiatric examination of Ms Evans in order to perform a section 36 assessment, and assess Ms Evans’ capability to participate in a rehabilitation program. Ms Evans’ brother participated as a support person. Dr Parmegiani noted that Ms Evans had been off work since August 2005 with a diagnosis of PTSD and depression. Dr Parmegiani opined that Ms Evans was suffering resolving symptoms of a Major Depressive Episode which resulted from problems of stress and anxiety, not inconsistent with PTSD arising from incidents at work in June and August 2005. He opined that he was not in agreement with Dr White’s diagnosis of Panic Disorder. Dr Parmegiani also commented on what Ms Evans perceived as harassment at work between June and August 2005, opining that “it is quite possible that at the time, due to her ongoing psychiatric condition, she genuinely perceived as harassment, actions that ordinarily would not have been considered as such.” No submissions were made about any such incidents, although we understand that Ms Evans’ claims of harassment in mid 2005 were resolved with no finding of harassment. However, notwithstanding, we noted that Ms Evans was able have input into which supervisor she preferred to work under.
40. Dr Parmegiani stated that he considered Ms Evans may be ready for a graduated return to work in April 2006 initially working two hours per day five days a week. He favoured a Plan being implemented over a period of six to eight weeks with consultation and review. He stated that he was in agreement with Ms Evans’ treating doctors, Drs Henderson and Butler.
41. At Exhibit A1 dated 13 June 2006, Dr Butler wrote to Dr Henderson that he considered Ms Evans fit to return to work on a graduated return on 19 June 2006 but said he thought “that she should be working a nine day fortnight rather than a ten day fortnight”. In his oral evidence before the Tribunal, Dr Butler said that he had referred to the nine day fortnight because he thought it was reasonable, and Ms Evans was capable of doing it. However he also agreed in replies in cross-examination that it was Ms Evans’ idea, and that he had acceded to her request.
42. We noted that Dr Henderson, in her medical certificates of 15 June and 29 June 2006 attributed the suggestion for the nine day fortnight to Dr Butler. We found it curious that, by way of contradiction, on 4 May 2006 Dr Butler had agreed to the RTWP which stipulated two hours work a day five days a week. We also noted with interest Dr Henderson’s explanation when giving her oral evidence, (not documented elsewhere), that the nine day fortnight was suggested because Ms Evans was so exhausted after her fortnightly interviews with Dr Butler that she could not work on the next day.
43. We heard evidence from Ms JS, the Senior Rehabilitation Case Manager who looked after the Applicant’s RTWP between July 2005 and July 2006. Her written statement before the Tribunal was Exhibit R8. Ms JS commented that the initial 2006 RTWP was to be in February or March 2006, and that, although it commenced in June, Ms Evans was not committed to a RTW, that she wanted it all her way, and that she was able to convince her doctors to support her in doing only the hours she wanted to work. Ms JS commented that the nine day fortnight was not out of the question, and may have been negotiated again later on, but that the medical information supported Ms Evans working short hours initially.
44. Ms Evans told us how she felt when she returned to work on 19 June 2006. She drank alcohol to excess the night before, stating that because she could not face her old office, she was transferred to a different Centrelink office (in the same geographical area), where she had different duties, and was to have no client contact. Ms Evans’ evidence was that she found it difficult to mentally prepare herself to be at work at a certain time of day, and that she found it difficult to travel to, and attend at work as she had to navigate around the Centrelink customers who inevitably stood around outside the office. She felt them to be threatening, and said that she was hiding, running into walls, feeling worried about who would be on the other side of any particular wall, that she could not concentrate, made mistakes, suffered migraines, was not eating well, and cried a lot. Ms Evans told us that she could hear customers being aggressive and screaming from where she sat in the office, and due to the location of her desk, felt trapped.
45. Ms Evans’ argument in support of the longer day, two and a half hours instead of two, and working a nine day fortnight rather than the ten days agreed in the RTWP, was that the effort of coming to work was so great that if she stayed longer hours, and did less days, it made more sense for her. Further, she said that she required a day off to recuperate after working nine consecutive days. We noted that the Applicant had previously, when working full time, negotiated to work a nine day fortnight which was not “a given” at Centrelink, but able to be negotiated individually. Ms Evans acknowledged that the suggestion she do a nine day fortnight as part of the RTWP was not well received at Centrelink, and that she was informed she could be suspended. Ms Evans was cross-examined about when she decided she was not going to attend work on 30 June 2006, the last day of the first fortnight of the RTWP. Her answers were equivocal, ranging from explaining the difficulties of working every day after not working for an extended period to not coping with working every day, to discussing the anticipated problems with Dr Butler and Dr Henderson. We were mindful, as stated above, that Ms Evans’ brother wrote to Centrelink on her behalf requesting she work a nine day fortnight well before she commenced the RTWP. We were mindful also that Ms Evans’ brother spoke with the National Compensation Rehabilitation Co-ordinator on 1 June 2006 about Ms Evans working a nine day fortnight. We are mindful also she knew from March 2006 that the RTWP involved her working a five day week. We are satisfied from the documentation before us as referred to above, and her evidence, that Ms Evans decided she needed or wanted to work a nine day fortnight well before she commenced the RTWP.
46. We noted also that on the first day of the RTW Plan, 19 June 2006, Ms Evans recorded in a diary note compiled with the assistance of her brother who assisted with many of the documents and negotiations with Centrelink, that she attempted to negotiate going to a relaxation class at the gym before coming to work. She said that the allocated work time was 11 am - 1 pm, but that she favoured noon – 2 pm, and eventually agreed to 1pm – 3pm. Ms Evans told us that Centrelink was being inflexible about work times, and did not understand that she had issues about attending at a particular time. We noted that the reason Centrelink gave for not agreeing with the noon – 2 pm time slot was that there was difficulty in ensuring support for Ms Evans during that period, because it was lunchtime. We did not consider that Centrelink was being inflexible about the time, and in fact negotiated with regard to a preferred time for the Applicant.
47. Ms Evans told us that after the first day back at work, (19 June 2006), she felt terrible, and was afraid and anxious, and feared the Centrelink customers outside the building whom she perceived as aggressive. She also told us that on the second day, 20 June 2006, she attended a lot of meetings although Dr Butler had told her she should not be in meetings. She said that a Centrelink supervisor raised issues regarding what she wore to work, and that she was reprimanded for wearing a denim skirt and thongs. She said that she had no warning she was going to be reprimanded, and had no support person with her. Ms Evans said that she did not have a uniform because after the 2005 event, she disposed of all her uniforms. She denied she was wearing thongs, and said that she was told she did not require a uniform after she returned on 19 June, because she was not serving customers. Ms Evans told us that she wore clothes similar to those worn by others. Ms Evans said that she felt insecure because her support person and rehabilitation supervisor were often missing from the workplace, in particular on the day she was taken aside and reprimanded. Her reaction as described to us, was extreme upset.
48. We were mindful of Ms Evans’ evidence regarding the next period during which she worked from 19 June to 29 June 2006, and her evidence that she continued to be fearful and anxious. Ms Evans told us that she was not given the training she had anticipated and was promised, but that she was expected to mainly undertake self directed computer learning from manuals, which she found difficult, in particular because she was not logged on to a computer. Ms Evans said that she was not permitted to attend at the only training day available, because it was held from 9 am to 4 pm.
49. She said that she could not concentrate to read the manuals she was given, and that she was not given actual work to do. The log-on date was the subject of some conflicting evidence. We were able to eventually conclude from Ms JJ, Ms Evans’ team leader’s evidence that access took some days to achieve. We noted from an email Ms Evans sent that she was given email access approximately three days after she commenced back at work. Ms Evans emphasised that she needed the training because some things had changed since she had been away, and in any case she was working in a different area.
50. Ms Evans detailed for us how badly, and how overwhelmed she felt each day of the nine days she worked from 19 June 2006, particularly going in and out of the office, and facing walking past the customers on her way to the car. She also had issues with her then 11 year old daughter who was unwell, so in line with Dr Henderson and Dr Butler’s advice regarding her working a nine day fortnight, and her feelings of exhaustion, she did not attend on the tenth day, 30 June 2006. Ms Evans told us that even though she was only at work for two hours day, the feelings of apprehension added to the time she took to travel to and from work, and it ended up taking a full day. We noted that Ms Evans did not attend work on 30 June 2006, and was coded absent. She was told that three such unauthorised absences could lead to her dismissal, and told us she was upset about that.
51. Ms JS’ evidence did not support Ms Evans’ which was that she was crying constantly at work. She did however indicate that Ms Evans frequently wanted to change meetings and rearrange times to suit herself.
52. Ms JJ who was Ms Evans’ Team Leader when she returned to work on the RTWP in 2006 gave oral evidence before the Tribunal. Her statement was Exhibit R5, and her diary notes PT89. Ms JJ said that she first had dealing with Ms Evans on her return to work on 19 June 2006 where she said she explained what Ms Evans’ training plan would be, and other details related to the job. She said that she discussed the work hours with Ms Evans, and Ms Evans told her that she had a medical certificate indicating she should work a nine day fortnight. Ms JJ noted at Exhibit R5 that Ms Evans said she felt safe within the allocated office and even spoke of having customer contact on the telephone, whereas Ms JJ indicated that that was not planned for the initial period.
53. Ms JJ wrote in her statement that she reviewed the first week with Ms Evans who told her she was having difficulty with the self-paced training package which Ms JJ said she encouraged her to persevere with. Ms JJ and Ms Evans attended a training session together on 28 June 2006 which Ms Evans could not complete as she was scheduled to leave work before it finished. Ms JJ wrote that on 29 June 2006 Ms Evans advised both orally and by email that she would not be attending the following day because her medical certificate so advised. Ms JJ advised Ms Evans that it was contrary to the RTWP, and she would have to record it accordingly.
The Period Following the First Nine Day Fortnight
54. The next stage of the RTWP provided that between 30 June 2006 and 14 July 2006 the Applicant was required to work three hours per day five days per week.
55. Ms JJ wrote in her statement that on 3 July 2006, the commencement of the third week, when Ms Evans was to work three hours a day for five days, Ms Evans advised her she had a medical certificate stating that she should work 4.5 hours a day for five days a fortnight. The Applicant provided a medical certificate from Dr Henderson dated 29 June 2006 which limited her fitness for employment to 4.5 hours per day three days per week.
56. Ms JJ noted that between 4 July and 14 July 2006 Ms Evans worked according to her medical certificate rather than the RTWP. Ms Evans again confirmed by email she would be working according to the hours specified on the medical certificate, that is three days per week (Tuesday, Wednesday, Thursday).
57. Between 14 July 2006 and 28 July 2006 the Applicant was expected, in accordance with the RTWP, to work four hours a day, five days per week. Dr Henderson provided the Applicant with a workers compensation medical certificate date 14 July 2006 indicating that she was only capable of working 4.5 hours per day three days per week.
58. Ms JJ stated that Ms Evans worked Tuesday 18 July 2006. Ms JJ told us that on that day there was an incident where a customer had raised his voice in the front office, but added that he was asked to leave, and there had been no need to escalate the attention or call police. Ms Evans being in the back office away from the customer area could hear the altercation, but was not involved, and Ms JJ said that when she checked on Ms Evans, Ms Evans told her she was all right. Ms JJ said that she found Ms Evans relatively unaffected by the incident, whereas Ms Evans told us there were such numerous such incidents, and that she was crying.
59. Ms Evans took special leave to attend her aunt’s funeral the next day, 19 July. She did not attend work on 20 July. Ms Evans worked on Friday 21 July, did not work 24 July, and returned 25 July for four hours, her final day. Ms JJ noted that Ms Evans sent her an email “claiming that she was performance managed and that she had received no refresher or formal training.” Ms JJ rejected that assertion.
60. The Applicant continued to follow the recommendations of her treating general practitioner. Her last day at work was 25 July 2006; her evidence was that she felt so badly that she had to ask a friend to take her home.
61. We noted that Ms Evans then became too ill to attend work. On 28 July 2006, Dr Henderson certified her as being unfit for employment from 27 July 2006 to 10 August 2006.
62. On 8 August 2006 Centrelink forwarded Ms Evans notice under section 37(7) of the Act suspending payments of compensation. Centrelink alleged that she had failed to participate as required in the RTWP dated 5 June 2006. Centrelink took the view that the Applicant did not have a reasonable excuse for failing to undertake the rehabilitation program as required.
63. The reconsideration of the Respondent’s determination pursuant to section 37(7) of the Act dated 8 August 2006 affirming that determination was dated 10 November 2006.
64. The Applicant continued to obtain certification from Dr Henderson certifying her as being totally incapacitated for employment until 28 November 2006. Then on or about 18 December 2006 the Applicant consulted Dr Henderson to discuss and endorse a further proposed RTWP. Following those discussions, Centrelink forwarded Ms Evans correspondence dated 2 January 2007 lifting the suspension of compensation entitlements under section 37(7) of the Act. She has since, in either December 2007/January 2008, been retired from the Commonwealth service due to medical invalidity.
65. We noted that Dr Lewin who was engaged by the Respondent in 2007 to give medico-legal advice made a diagnosis based on Ms Evans’ “complex of reactive symptoms of anxiety and depression” which she reported to him. He opined that: “There were reactive symptoms of anxiety and depression and there were features of a Post Traumatic Stress Disorder. Ms Evans described what amounts to an extreme reaction. The nature and intensity of that reaction is not fully explained on the basis of the recent events at the Centrelink office alone.”
66. When asked specifically about whether Ms Evans had a reasonable excuse not to participate in a RTWP, Dr Lewin, in his report of 21 May 2008, stated that he concluded at his assessment in November 2007, that Ms Evans was fit for full time varied duties in a variety of different work settings, and was fit to participate in the RTWP advised.
67. When Dr Lewin was asked the significance of Ms Evans producing, in advance of the RTWP in June 2006, a medical certificate which provided for her to work a nine day fortnight rather than two hours a day for five days a week, Dr Lewin said that it had no medical basis.
68. As to comment about the RTWP; Dr Lewin reported that Ms Evans described a number of anxiety symptoms, and opined that: “It is usual for reactive symptoms of anxiety to be expected, provided for and dealt with within the context of a rehabilitation programme such as the one prescribed for Ms Evans.” In his oral evidence Dr Lewin stated that: “…my earlier discussion about desensitisation. The thing that gets you better is actually dealing with the situation. The aim of the rehabilitation program is to get you to deal with something you would prefer to avoid.” He added that it was the job of rehabilitation providers to assist the person with the RTW, and manage her through it, rehearsing the return, allowing some latitude, and noted that desensitisation through the very exposure to the workplace has a role.
69. Dr Lewin noted Ms Evans’ anger at what she perceived was the failure of management’s response and its harsh treatment of her in the RTWP in what she described was to “teach me a lesson”. Dr Parmegiani also commented on Ms Evans’ strong sense of entitlement regarding the RTWP, wanting it “all done by the book” and expressing the feeling that Centrelink was inflexible. Ms Carroll and Mr Irvine reported that when Ms Evans first attended at their clinic some 10 months after the incident on 29 June 2005, it appeared that although Ms Evans had suffered considerable anxiety following the incident, “her overriding presenting emotions were anger and outrage at having been left in a vulnerable situation without adequate security, support or care, and with the prospect of returning to that same perceived unsafe situation.”
70. On page 8 of his report of 22 November 2007, Dr Lewin referred to the observations of the support person who accompanied Ms Evans to see him. He noted that she commented Ms Evans had coped reasonably well for some weeks after her RTWP. She then described what he recorded as a “deterioration in Donna’s behaviour”, clarifying it to mean Ms Evans was drinking heavily daily again, and ringing her friends in an intoxicated state in the middle of the night.
TRIBUNAL’S DELIBERATIONS AND CONCLUSIONS
71. In deciding whether Ms Evans had a reasonable excuse pursuant to section 37(7) of the Act for refusing or failing to participate in the 2006 RTWP and graduated return to work dated 5 June 2006, we took into account all the evidence before us, the legislation and the case law.
72. In doing so, we took account of Australian Postal Corporation v Forgie (supra) [40], where the Full Court stated: “… The inclusion of the words ‘without reasonable excuse’ introduces a distinctive requirement for some deliberative human action. An assessment needs to be made at some point – by a person – as to a refusal or failure to undertake a rehabilitation program, and the reasonableness or unreasonableness of that refusal or failure. Such a process involves matters of judgment and degree …” . We are guided by that in applying section 37(7) of the Act.
73. We are mindful that Ms Evans has had the benefit of attending quite a few doctors in connection with the RTWP issues. They included continuing support from Dr Henderson, Dr Butler, and consultations and treatment with psychologists, Mr Rombouts, Ms Carroll, and Mr Irvine, Dr Parmegiani a psychiatrist engaged by Centrelink to assess Ms Evans in connection with the RTWP, and a further assessment by Dr Lewin.
74. We were satisfied that Ms Evans gave a consistent account of the events of 29 June 2005 to all the doctors, and it is not in dispute that liability was accepted for the incident on the diagnosis of PTSD. We are also mindful however, that she was vulnerable to further psychological injury when she commenced the job at Centrelink in 1999 (Dr Lewin), and that she had problems as a single mother bringing up a child. We are mindful also from Dr Butler and Dr Lewin’s evidence that due to problems Ms Evans experienced or perceived with taking medication, she did not like taking it. They opined that Ms Evans’ condition may have resolved sooner had she agreed to taking medication. We have drawn no adverse inferences from the fact Ms Evans preferred not to take medication, and have noted it here solely for the sake of completeness.
75. We note further there were numerous Centrelink staff as well as rehabilitation people and support people involved in meetings who assisted Ms Evans during the period she was away from work, and in her RTW. We accept that their assistance was supportive, but are mindful of the difficulties Ms Evans underwent with her RTWP. We are mindful that Drs Henderson, Butler, and Parmegiani all approved the RTWP which involved a five day working week.
76. We are mindful also that notwithstanding Mr Richards’ submissions accepting on behalf of Ms Evans that the RTWP was a valid one, Ms Evans indicated both at the hearing and in documents before us that she felt Centrelink was too rigid in its application, and that psychological difficulties she faced actually getting to work, and any variations she sought, were not dealt with fairly. However, in coming to a decision, we are satisfied that the 2006 RTWP was a valid document. We are also mindful of the rehabilitation manager’s views that it is generally not considered to be in the best interests of either Centrelink’s business needs nor an employee’s health and wellbeing for employees to work long daily hours to gain extra days off. We noted Ms JJ’s view regarding the nine day fortnight that operationally she would have to have considered it, but that following a significant period of absence from work it was rehabilitation best practice for an employee to work standard hours and not longer days in order to achieve less days, and we accepted that.
77. However, we are also mindful of Ms Evans’ difficulties in attending work as scheduled on 13 June 2006, and that on 1 June 2006 Dr Henderson certified her unfit for work from 20 May 2006 to 16 June 2006. We noted that Dr Henderson’s notes of 15 June 2006 reflect that Ms Evans had a “good interview” with Ms Carroll, and was “ready to return to work next week”. We noted that Ms Evans made the effort and attended on 19 June 2006, but not before drinking excessive alcohol on 18 June 2006.
78. We had ample evidence of how badly Ms Evans she felt on her return to work, the anxiety she felt when arriving or leaving because she had to walk past Centrelink clients, (even though we noted that after raising it she was assisted by being permitted to use a side entrance), and the difficulties she encountered with the self-paced learning she was expected to undertake, arising from the lack of concentration, the work having changed since she previously did it, and the fact she was not given computer access until some three days or so after she commenced. We were satisfied also that Ms Evans felt excluded because both she and Centrelink knew she would only be in that designated office for eight weeks, that is for the period of the RTWP.
79. We accepted Ms Evans’ evidence that she felt badly and overwhelmed on each day of the nine days she worked, commencing on 19 June 2006, particularly arriving and leaving the office, and how she found it difficult to face walking past the Centrelink customers on her way to the car. We were mindful Ms Evans also had issues with her then 11 year old daughter who was unwell, so in line with Dr Henderson and Dr Butler’s advice regarding her working a nine day fortnight, and her reported feelings of exhaustion, she did not attend on the tenth day, 30 June 2006. We noted Ms Evans evidence that even though she was only at work for two hours a day, her feelings of apprehension added to the time she took to travel to and from work, and it ended up taking a full day.
80. We are mindful of course of the submissions of the Respondent and of the evidence before us regarding the nine day fortnight:
· that Ms Evans had negotiated a nine day fortnight which she had been working for a considerable time before the incident of 29 June 2005;
· that the Respondent’s case was that Ms Evans wanted to retain the previously negotiated nine day fortnight for the RTWP for her convenience and not for medical reasons;
· that the Applicant, through her brother had made requests to work a nine day fortnight some months before she commenced her RTWP although she knew it was to be two hours a day five days a week for the first two weeks. Ms Evans also she raised the nine day fortnight with her Team Leader on the day she started her RTWP, (19 June 2006);
· that Dr Henderson attributed the reason for requesting the nine day fortnight to Dr Butler, and also to what she described as Ms Evans being exhausted after consulting Dr Butler and hence needing a day off;
· that Dr Butler agreed in cross-examination that he recommended a nine day fortnight after a request from Ms Evans, and that there was no particular medical reason for agreeing to it;
· that notwithstanding the RTWP had been approved by all relevant parties including Ms Evans’ doctors, Ms Evans told her supervisors during the first week of the RTWP that she would be working a nine day fortnight;
· that both Dr Lewin and Dr Parmegiani held the view that the nine day fortnight had no medical basis;
· that Dr Lewin’s opinion was as follows: “It is usual for reactive symptoms of anxiety to be expected, provided for and dealt with within the context of a rehabilitation programme such as the one prescribed for Ms Evans.”
81. Accordingly, we concluded that the non-attendance on 30 June 2006 may have in part been due to Ms Evans being tired and suffering anxiety after the RTW, but we are satisfied to the requisite standard that when she commenced the RTWP on 19 June 2006, she was focused on working a nine day fortnight as she had done before the events of 29 June 2005. Therefore we are unable to find that Ms Evans had a reasonable excuse, to be absent and not undertaking the RTWP on 30 June 2006. However, as we have indicated in the paragraphs below, we are satisfied that Ms Evans experienced difficulties in the first two weeks, and that her health deteriorated in the weeks which followed in that she suffered more anxiety, nightmares and other symptoms of anxiety.
82. Ms JS’ evidence did not support Ms Evans’ which was that she was crying constantly at work. She did however indicate that Ms Evans frequently wanted to change meetings and rearrange times to suit herself. We accepted Ms Evans’ evidence that she felt stressed and she could not cope with meetings, and are mindful that Dr Butler advised she, accordingly, should not attend.
83. We noted Ms JJ’s evidence that Ms Evans was supported as much as possible at work and that, notwithstanding certain self paced learning, she also had certain other training. We did not doubt that certain support was given, and that efforts were made to assist. Ms JJ noted that on and from 26 July Ms Evans did not attend. Her view was that “Donna appeared to put up barriers with every endeavour to commit to the RTWP.However as the medical evidence which follows indicates, we are satisfied that Ms Evans’ state of health was impacting seriously on her ability to work.
84. Dr Lewin noted Ms Evans’ anger at what she perceived was the failure of management’s response and its harsh treatment of her in the RTWP in what she described was to “teach me a lesson”. Dr Parmegiani also commented on Ms Evans’ strong sense of entitlement regarding the RTWP, wanting it “all done by the book” and expressing the feeling that Centrelink was inflexible. Ms Carroll and Mr Irvine reported that when Ms Evans first attended at their clinic some 10 months after the incident on 29 June 2005, it appeared that although Ms Evans had suffered considerable anxiety following the incident, “her overriding presenting emotions were anger and outrage at having been left in a vulnerable situation without adequate security, support or care, and with the prospect of returning to that same perceived unsafe situation.”
85. On page 8 of his report of 22 November 2007, Dr Lewin referred to the observations of the support person who accompanied Ms Evans to see him. He noted that she commented Ms Evans had coped reasonably well for some weeks after her RTW. She then described what he recorded as a “deterioration in Donna’s behaviour”, clarifying it to mean Ms Evans was drinking heavily daily again, and ringing her friends in an intoxicated state in the middle of the night.
86. We accepted Ms Evans’ evidence that in the third week, commencing 3 July 2006, she felt she was getting worse, more anxious, and experienced more nightmares. Dr Henderson’s medical certificate dated 29 June 2006 proposed according to Dr Butler’s suggestion, that Ms Evans work 4.5 hours per day over a five day fortnight.
87. Meanwhile the management had informed Ms Evans they would code her as an unauthorised absentee from work for 30 June, and warned her, as they were entitled to do, that three such events would lead to dismissal. This understandably created more anxiety. Ms Evans told us that: “I was getting sicker and sicker” which we accepted. She said she knew that the RTWP indicated she had to work every day, but complied with Dr Henderson’s medical certificates, and worked Tuesday, Wednesday and Thursday. We are mindful that an employee’s dissatisfaction with a valid RTWP does not constitute reasonable excuse pursuant to the Act not to undertake the Plan.
88. We have already noted in the paragraphs above that Ms Evans did not attend five days during the third week or the fourth week, and that following her attendance on 25 July 2006, she ceased undertaking the RTWP.
89. We noted in the period leading up to 25 July 2006, Dr Henderson recorded in her clinical notes on 14 July 2006 at Exhibit A9, as follows with regard to Ms Evans: “No work – No training … good workmates … Vivienne (psychologist) has advised her to leave work – has threatening dreams – crying +++ - terrified of parking and being assaulted avoiding crowds of customers – new job 4 wks Wyong ? specific training – Mickayle ill this week – so off sick c her.”
90. We noted Ms Evans’ evidence that she was getting progressively worse, could not get her mind together, was not sleeping, was crying, and could not function. We noted that on 25 July Ms Evans complained that she was being performance managed, and was concerned about this because she had not undergone what she considered was suitable training for the work she was required to do.
91. We noted that Ms JJ, Ms Evans’ team leader emphasised that Ms Evans’ work was checked like everyone else’s, and that she always had a buddy available to assist. We accepted Ms Evans’ evidence that she felt as though she was not given real work to do, and was just being baby sat, and would never be part of the team because the RTWP was only for eight weeks.
92. We noted Ms Evans’ description of her last day of work in the 2006 RTWP, being 25 July 2006. She told us she was very distressed and could not remember much about it. Ms Evans said that she had to ring a friend to take her home on that day. Ms Evans told us that she knew then that she could not continue, she felt great animosity towards her at work, she felt every day that she was about to be sacked, was suffering hives on her body, and was very stressed.
93. Ms Evans consulted Dr Henderson who, recorded in her clinical notes on 28 July 2006 with regard to the previous week as follows: “Last wk – doing claims – difficult & anxiety about poor results … got drunk & upset +++ was told couldn’t get support for visit to Dr Parmegiani … physically anxiety/shaking crying ++ - takes too long to come back to normality – Mikayle v. upset again. Dr B. has given her 1-2 weeks off - (has sleep plan) to see W Irvine ….see Dr B next week RTW the next w ? …”
94. This was followed by an entry on 1 August 2006: “W/C cert” and another on 8 August 2006: “c/o Dr David Butler (psych) – not fit for work.” The following entry was on 14 August 2006: “’Suspended’ no R – lots better when not at work ….”
95. Dr Henderson also certified Ms Evans as unfit for work first from 27 July 2006 to 10 August 2006, and then in subsequent consultations, continuously until 28 December 2006.
96. In his report of 8 August 2006, (Exhibit A2), Dr Butler noted that Ms Evans was not coping well with the RTWP, and “was becoming increasingly depressed, angry and anxious and having a lot of arguments with the people who were trying to help her in the ‘return to work’ at Centrelink”. At this stage , she still isn’t well enough to return to work.
97. On 8 August 2006 Ms Evans was suspended under section 37(7) of the Act.
98. We were mindful of a conversation between Dr Henderson and Dr Parmegiani as recorded in her notes of 31 August 2006, as follows: “discussion – RTW has made Donna worse above info passed on. Consensus is to make Donna ‘medically unfit’ for Centrelink & retire to a less stressful job.” Dr Parmegiani corroborated the content of the notes in his oral evidence, and opined that on 31 August 2006 he was of the opinion that Ms Evans was unable to participate in rehabilitation or the RTWP.
99. We accepted Ms Evans’ evidence and the medical evidence as noted in the paragraphs above which indicated that the Applicant’s condition deteriorated during the currency of the RTWP, that she was not coping well right from the start, that her anxiety escalated over the next period, and that she was not able to continue after 25 July 2006.
100. We noted that Dr A Gibson who is an occupational physician, was asked by Centrelink to assess Ms Evans’ for work. He produced a report dated 27 October 2006 (Exhibit A4), in which he opined that Ms Evans was at that stage, “unfit for all work in any capacity”, but expected that her condition would improve and that she be reviewed in six months.
101. Dr Parmegiani in his report of 29 March 2007, stated:
“Clinically, I believe Ms Evans has been given ample opportunity to return to her previous full time duties, but the graduated return to work programmes have consistently failed. I believe this is due to a persistence of her psychiatric symptoms, brought about by her inability (due to side effects) to take appropriate medications, and to the ongoing negative effects of other interpersonal issues in her life. … it is my opinion that further attempts at returning and reintegrating Ms Evans in the current workplace will be highly likely to fail, and I would therefore recommend that the option of medical retirement be seriously considered and supported at this stage.”
102. Dr Parmegiani also reviewed Ms Evans on 31 August 2006 and 1 February 2007. He conducted a section 36 assessment of Ms Evans on 28 March 2007. By the time of the 28 March 2007 interview, Ms Evans had returned to work fulltime some months previously. Dr Parmegiani noted that on the day of his examination Ms Evans reported ongoing symptoms of depression, and the firm belief that she would not ever be able to return to any position in Centrelink that required direct customer contact. We noted that he recommended medical retirement which has in fact since taken place.
103. We are satisfied from the evidence discussed above that the RTWP was a valid plan. We are satisfied from the medical evidence and Ms Evans’ evidence, that her absence from work on 30 June 2006 was premeditated, and we do not accept that there was a reasonable excuse pursuant to the legislation for her non attendance on that day.
104. However we have also accepted that her medical condition continued to deteriorate during the currency of the RTWP, and that she was medically unfit to work when she worked on her last day on 25 July 2006.
105. Therefore the decision under review must be varied.
DECISION
106. The Tribunal varies the reviewable decision to suspend Ms Evans’ rights under section 37(7) of the Act, and in substitution therefor, the Tribunal finds that Ms Evans had a reasonable excuse not to continue to undertake the 2006 RTWP after 25 July 2006.
107. The claim for permanent impairment made in matter 2008/3282 was withdrawn by the Applicant during the Hearing, and is hence finalised.
108. Costs are awarded pursuant to section 67(8) of the Act according to the AAT’s Practice Direction.
I certify that the 108 preceding paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member, and Dr I Alexander, Member
Signed: ..............[sgd]................................................................
AssociateDates of Hearing 20 - 23 October & 14 November 2008
Date of Decision 22 December 2008
Counsel for the Applicant Mr D Richards
Solicitor for the Applicant Mr D Williams, Slater & Gordon
Counsel for the Respondent Mr M Best
Solicitor for the Respondent Ms A Bortone, Sparke Helmore
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