Fairweather and Australian Postal Corporation

[2009] AATA 503

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 503

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/0178

GENERAL ADMINISTRATIVE DIVISION		)              2007/1416
Re		THOMAS LOUISE FAIRWEATHER

Applicant

And AUSTRALIAN POSTAL CORPORATION

Respondent

DECISION

Tribunal Mrs Josephine Kelly, Senior Member
Dr J Campbell, Member

Date3 July 2009

PlaceSydney

Decision

In proceedings 2007/0178, we affirm the reviewable decision made on 26 October 2006 which affirmed the decision made on 13 July 2006 that Australia Post was no longer liable to pay compensation for household cleaning services on and from 31 July 2006 (s 29 of the Act).

In proceedings 2007/1416, we affirm the reviewable decision made on 10 April 2007 affirming the decision made 20 December 2006, to suspend Mr Fairweather's’s rights to compensation and to institute or continue proceedings because he had refused to undertake a rehabilitation program without a reasonable excuse (s 37(7) of the Act). 

...................[sgd]..........................

Senior Member
  Mrs Josephine Kelly

CATCHWORDS

COMPENSATION – Australia Post employee – Accepted injuries to right foot and left ankle - – Whether entitled to compensation for household services – Whether refused to undertake rehabilitation program without reasonable excuse – Held Applicant’s complaints of symptoms  exaggerated and unreliable – Decisions affirmed

Safety, Rehabilitation and Compensation Act 1988, ss 16, 29, 37

McGuinness v Comcare Australia (2007) 99 ALD 57

Pascoe v Australian Postal Corporation (2004) 77 ALD 464

REASONS FOR DECISION

3 July 2009 Mrs Josephine Kelly, Senior Member
Dr J Campbell, Member     

INTRODUCTION

1.      Mr Thomas Fairweather is employed by the Australian Postal Corporation (Australia Post). Australia Post has accepted liability for compensation for “fracture right medial cuneiform” suffered   during an assault in Surry Hills in May 2002 (the right foot injury). 

2.      Liability has also been accepted for a lateral ligament sprain – left ankle, arising from an accident on 31 August 2000 (the left ankle injury). 

3. On 2 November 2003 this Tribunal issued a consent decision in which Australia Post accepted that “as a result of the incident on the way home from work with the respondent on 20 May 2002 the applicant has suffered a psychological reaction” and “the injury results in the need for psychological counselling” and Mr Fairweather was entitled to compensation under section 16 of the Safety Rehabilitation and Compensation Act 1988 (the Act) in respect of a further 10 psychological counselling sessions over the next six months from the date of this decision”.

4.      Mr Fairweather seeks the review of two decisions made by Australia Post.  

5.      In proceedings 2007/0178, Australia Post decided on 13 July 2006 that it was no longer liable to pay compensation for household cleaning services on and from 31 July 2006 (s 29 of the Act). That decision was affirmed on 26 October 2006 (the first reviewable decision).

6.      In proceedings 2007/1416, Australia Post decided on 20 December 2006, to suspend Mr Fairweather’s rights to compensation and to institute or continue proceedings because he had refused to undertake a rehabilitation program without a reasonable excuse (s 37(7) of the Act).  That decision was affirmed on 10 April 2007 (the second reviewable decision).

7. In summary, we find that Mr Fairweather's evidence, including his complaints of pain and ongoing incapacity, is exaggerated and unreliable. That has led us to accept medical evidence which is consistent with that finding and which persuades us that Mr Fairweather is not entitled to compensation for household services pursuant to s 29 of the Act and he has refused to undertake the rehabilitation program without a reasonable excuse (s 37(7) of the Act. We have decided to affirm the decisions under review.

THE ISSUES

8.      The issues in these proceedings are:

2007/0178

a) Whether Mr Fairweather reasonably requires household cleaning services because of his accepted injuries (s 29(1) of the Act);

2008/1416

b) Whether Mr Fairweather has a reasonable excuse for failing to undertake his rehabilitation program dated 28 November 2006 (s 37(7) of the Act)?

THE CASE FOR MR FAIRWEATHER

9.      Mr Richards, counsel for Mr Fairweather, argued that the Tribunal should accept Mr Fairweather's evidence about his symptoms and consequent inability to clean his home. 

10.     In relation to the rehabilitation program, Mr Richards argued that Mr Fairweather has been attempting to undertake it on and off since 2006.  Each time he goes back to work, he recommences the program. He has worked two or three days a week.   He relied on the decision of McInnis FM in McGuinness v Comcare Australia [2007] FMCA 1486 (31 August 2007).

11.     Alternatively, Mr Richards argued that the rehabilitation program was not appropriate for Mr Fairweather because his symptoms prevented his carrying it out.  He has some work related and non-work related reasons for not being able to work the maximum number of hours.  He regularly has panic attacks at night,  and he is taking morphine for his pain.  His medication is also causing him to suffer diarrhoea.    He has a reasonable excuse for not undertaking the program.

12.     Mr Richards relied on medical evidence of Dr Canaris, psychiatrist, Dr McFarlane, general practitioner, Dr Bentivoglio, orthopaedic surgeon, and Dr Brooke, rehabilitation physician.  He also relied to some extent on material from Dr Reznik, psychiatrist.

13.     Several statements of lay witnesses were in evidence and several gave oral evidence in support of the case for Australia Post.  On 2 March 2009, Mr Richards told us that he was not challenging any of the evidence of the lay witnesses.  He was not questioning that the witnesses held the beliefs that they gave evidence about.   He said that Mr Fairweather was suffering a psychiatric condition and was heavily medicated at times and therefore his history of conversations may be incorrect.

CONSIDERATION

14.     We have taken into account all the evidence before us, including medical and lay evidence.  

15.     We find that Mr Fairweather's evidence, including his complaints of pain, the adverse effect of medication, and psychiatric symptoms, to doctors, his employer, and in evidence before us, have been grossly exaggerated and are therefore unreliable.  We also accept the evidence of the lay witnesses which supports our finding that Mr Fairweather's evidence is unreliable. 

16.        It also follows that we do not accept the evidence of doctors whose opinions depend on the reliability of what Mr Fairweather has told them.  For that reason the evidence of Dr McFarlane, general practitioner, and Dr Brooke, rehabilitation physician, is not of assistance.  In effect, neither doctor was "treating" Mr Fairweather.  He was simply being prescribed medication in response to his complaints of pain.  We have taken into account the clinical notes of Dr McFarlane tendered, and these support our findings.  Dr Brooke undertook one physical examination when she took over from Dr Faux in August 2006, but did not undertake another until she prepared a report in 2007 for medico-legal purposes.   She admitted frankly that the pathology in the right mid foot could not account for Mr Fairweather's current pain.   We do not accept the explanation for the pain that she gave, as we do not accept Mr Fairweather's complaints are genuine.

17.     While relying on Dr Brooke's evidence, Mr Richards had submitted that she was incorrect or mistaken when she wrote in her report dated 7 September 2006 that Mr Fairweather had succeeded in returning to work 7 hours per day for 3 days and 6 hours per day on the other two days.   The difficulty Mr Richards had was that Dr McFarlane and Dr Brooke had supported the rehabilitation program, whereas he was arguing that it was inappropriate or unreasonable for Mr Fairweather. 

18.     We also do not find the material from Dr Reznik helpful because he relies on the reports made Mr Fairweather.

19.     As well as the unreliability of what Mr Fairweather has told doctors, other medical evidence relied upon to support Mr Fairweather's case has additional deficiencies. In his report dated 13 March 2008 Dr Canaris, psychiatrist, was really addressing whether Mr Fairweather had suffered a psychiatric condition arising from his employment, and not the issues relevant to these proceedings.  Dr Canaris had taken a poor history.  For example, he had no record of medications being taken, which included opiates and testosterone, no history of relevant work duties, and therefore no understanding of their impact, if any, on Mr Fairweather's pain level.  He had not addressed Mr Fairweather's need for household assistance in his report and although he was asked about that matter during his oral evidence we did not find his evidence of assistance.

20.     The evidence of Dr Bentivoglio, orthopaedic surgeon, was limited to the question of whether Mr Fairweather needs household assistance.  We did not find Dr Bentivoglio's evidence helpful.  He had taken a history that Mr Fairweather was able to do his shopping and take care of his garden, but in oral evidence said that he required assistance with those tasks – ¾ of an hour for shopping and ¼ hour for gardening.  There was simply no support for the opinion he gave from the history he had taken. 

21.     We found the medical evidence relied upon by Australia Post comprehensive and persuasive, as discussed below. 

22.     Dr McGill, rheumatologist, took comprehensive histories and made a careful examination of Mr Fairweather on two occasions.   Dr McGill's clinical findings were not consistent with the symptomatology reported. For example, he found no mechanical reason for limitations in Mr Fairweather's right ankle joint.  There were calluses bilaterally which were symmetrical, which was inconsistent with Mr Fairweather's claiming he was favouring his right foot.  Given the severity of reported symptoms, Dr McGill would have expected to find wasting in the right calf which he did not.  He concluded that Mr Fairweather was feigning symptoms. 

23.     In his report dated 6 September 2007, Dr McGill wrote:

“His alleged work capacity is not consistent with the physical findings nor with his capacity to walk the extended distance he wishes.

He is fit to perform his current restricted duties on a full time basis. He has had successful right midfoot fusion. He is at least capable of performing of performing full duties with the restrictions outlined by Dr Steven Faux in his letter of 16 May 2006 (that is avoidance of working at heights, walking for only 20 minutes and then being allowed to have a 2 – 3 minute rest, no repetitive stair climbing, unrestricted driving or sitting, standing for only 10 minutes at a time without being able to sit down)…

The marked limp which he demonstrated during the examination was inconsistent with the symmetry of callus formation under the feet and the preservation of normal, symmetrical muscle bulk in the lower limbs.

His physical prognosis with respect to the right foot is good. His prognosis with respect to his work output depends on factors other than related to the physical capacity of his foot”.

24.      Professor Nade, orthopaedic surgeon, found Mr Fairweather's symptomatology exaggerated. He observed Mr Fairweather walking with a gait he had never seen before in someone with the kind of injury he had suffered. In his opinion, Mr Fairweather was unquestioningly being prescribed narcotic medication by his treating practitioners.

25.     Dr Roldan, clinical psychologist and neuropsychologist, carried out a very comprehensive consideration of relevant medical reports, and carried out psychological testing.  Mr Roldan assessed Mr Fairweather on 24 April 2003 and again on 28 September 2007.  In his report of 28 September 2007 he said:

“I also remain of the opinion that from a psychological/behavioural perspective, Mr Fairweather presents with significant overt pain behaviours and that he makes many complaints about physical restrictions and ongoing physical discomfort, complaints that according to Dr McGill are well in excess of what would have been expected on the basis of the clinical history and the clinical findings. I also note that there appear to be inconsistency in Mr Fairweather’s report of symptoms and associated disability. Furthermore, I note that Mr Fairweather’s response to the MMPI-2 yielded a pattern of scores that has been found to be strongly associated with the conscious over-report of physical symptoms and physical disability. Also, it is noted that on the PDI, Mr Fairweather rates himself as significantly more impaired than patients admitted to hospital due to their severe and incapacitating pain experience, something which again draws attention to the atypical nature of Mr Fairweather’s symptom and disability report”.

26.     We accept Mr Roldan's opinion that Mr Fairweather was consciously over-reporting his symptoms of pain and disability.

OTHER ARGUMENTS FOR MR FAIRWEATHER

27.     Given the findings we have made, we do not consider that it is necessary to decide a number of matters put by Mr Richards, however, we deal with each briefly.    

28.     First, he argued that we should make the decision in relation to cleaning services first so that Mr Fairweather would receive the benefit of that decision from 13 July 2006, the date of the primary decision on that issue until 20 December 2006, which is the date of the primary decision in relation to the suspension of compensation decision.  We understood this argument to be put in the event that we found against Mr Fairweather in relation to the rehabilitation program issue, but in his favour in relation to the cleaning services decision.  As we have not found in Mr Fairweather's favour in either proceeding, this did not arise.

29.     Mr Richards argued that there was an evidentiary onus on Australia Post to prove that Mr Fairweather was not longer entitled to the cleaning service,  because he had been receiving the benefit of 3 hours' assistance a week for a couple of years.  We do not need to decide if there is such an onus because even if Mr Richards' argument is correct, Australia Post has discharged any such onus.

30.     We understood him to make a similar argument in relation to the rehabilitation program.  Again, even if that is correct, Australia Post has discharged that onus.   

31.     We do not accept Mr Richards' argument that Mr  Fairweather had never been capable of undertaking the program and therefore it was inappropriate or unreasonable because we do not accept Mr Fairweather's evidence about his capacity and that he could not undertake the program.  It was contradicted explicitly by Dr Brooke in her September 2006 report. 

32.     It is therefore unnecessary to decide the legal question whether the appropriateness of a rehabilitation program can be raised in this kind of proceeding when Mr Fairweather had not sought reconsideration pursuant to s 38(2) of the Act.   However, it appears to us that the decision of the Full Federal Court in Pascoe v Australian Postal Corporation (2004) 77 ALD 464 6 February 2004 makes it clear that the answer to that question is no. Mr Richards relied on the decision of McInnis FM in McGuinness v Comcare Australia (2007) 99 ALD 57 (31 August 2007). As Mr Jones, counsel for Australia Post, pointed out, the decision in Pascoe was apparently not brought to his Honour's attention. 

33. We reject Mr Richards' alternative argument that Mr Fairweather did undertake the rehabilitation program if he attended work on any day for about more than half an hour, or as put in a different way by Mr Richards, the first day that Mr Fairweather went back after 20 December 2006, and worked one full day, we should consider that he had "restarted" the program. There is no support for Mr Richards's argument in s 37(7) of the Act. We agree with Mr Jones that such an argument is repugnant to common sense. If such an argument had any force, there would have to be a requirement that the employee was genuinely seeking to undertake the program. We find that Mr Fairweather was not genuinely trying to undertake the rehabilitation program.

CONCLUSION

34.     In proceedings 2007/0178, we affirm the reviewable decision made on 26 October 2006 which affirmed the decision made on 13 July 2006 that Australia Post was no longer liable to pay compensation for household cleaning services on and from 31 July 2006 (s 29 of the Act).

35.     In proceedings 2007/1416,  we affirm the reviewable decision made on 10 April 2007 affirming the decision made 20 December 2006, to suspend ’s rights to compensation and to institute or continue proceedings because he had refused to undertake a rehabilitation program without a reasonable excuse (s 37(7) of the Act). 

I certify that the 35 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs Josephine Kelly, Senior Member and Dr J Campbell, Member.

Signed: ……[sgd]..……….

Steven Mulipola, Associate

Dates of hearing:  23, 24, 25, 26 and 27 February 2009 and 2 March 2009

Date final material filed:  20 March 2009

Date of decision:  3 July 2009

Counsel for the Applicant:  Mr D Richards

Solicitors for the Applicant:  Slater & Gordon

Counsel for the Respondent:  Mr P Jones

Solicitors for the Respondent:                  Australian Government Solicitor