Fleming and Comcare
[2004] AATA 1016
•29 September 2001
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 1016
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V01/1102
GENERAL ADMINISTRATIVE DIVISION ) Re DAVID FLEMING Applicant
And
COMCARE
Respondent
DECISION
Tribunal Mr John Handley, Senior Member Date29 September 2004
PlaceMelbourne
Decision The Tribunal affirms the decision under review. (Sgd) J Handley
Senior Member
COMPENSATION – application to have Comcare fund a course in psychology as rehabilitation – applicant 56 years and in receipt of weekly compensation from 1978 – s37(3) criteria examined – decision affirmed
Compensation (Commonwealth Government Employees) Act 1971(Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth) s4, s5(9), s36, s37 and s40
Australian Telecommunications Corporation v Moffat (1992) 15 AAR 289
Re Cook and Telstra Corporation Limited [2003] AATA 786
Hardin v Comcare (1995) 21 AAR 392
Commonwealth v Muratore (1978) 141 CLR 296
Bushell v Repatriation Commission (1992) 175 CLR 408
Comcare v Sassella [2001] FCA 1514
Slater v Telstra Corporation Limited) [2001] FCA 1417
Franks v Secretary, Department of Family and Community Services [2002] FCAFC 436
Re Fox and Department of Defence (1996) 40 ALD 614 at 620
REASONS FOR DECISION
29 September 2004 Mr John Handley, Senior Member 1. The applicant applies to review a decision made by the respondent on 28 June 2001. The respondent then decided to affirm decisions made on 7 December 200 and 27 April 2001. The applicant was self represented and the respondent was represented by Mr Joseph Ferwerda of counsel. The events giving rise to this application are briefly summarised as follows.
2. The applicant was born on 20 September 1948 and is presently 56 years of age. In October 1978 he was medically retired from the Australian Public Service. He was then employed by the Australian Bureau of Statistics (“ABS”). Mr Fleming was then being treated by Dr Alan Large, a psychiatrist who had been providing certificates for total incapacity for some time prior to October 1978. The certified cause of incapacity was “nervous disorder”. Initially Mr Fleming received payments of sick pay and other entitlements owing to him. Eventually a claim for compensation was made under the Compensation (Commonwealth Government Employees) Act 1971. The claim was initially “disallowed” (T17) and a determination was issued in April 1981. On 24 March 1982 the Administrative Appeals Tribunal (“AAT”) set aside that determination. The application was remitted to the Commissioner for Commonwealth Employees Compensation with Directions that the applicant “suffered an aggravation of his personality disorder and reactive anxiety depression to which his employment by the Australian Bureau of Statistics was a contributing factor”.
3. Immediately prior to that decision the applicant had commenced a course of training as a computer technician at the Royal Melbourne Institute of Technology (“RMIT”). The Tribunal deemed the applicant to have been totally incapacitated but also decided that at the conclusion of the computer technician course his ongoing entitlement to weekly compensation should be reviewed.
4. Subsequent to the decision of the AAT in 1982 the applicant has been in receipt of weekly compensation. He continues to receive weekly compensation at the present time. Mr Fleming has apparently also satisfied the Commonwealth Superannuation Commissioner that he is totally and permanently disabled by reason of him also having qualified for a superannuation pension which he continues to receive.
5. Towards the end of 1999, Mr Fleming approached Comcare seeking, by way of rehabilitation, acceptance of its liability to meet the cost of him undertaking a course in naturopathy. Reports were obtained from Dr Large who has continued to treat Mr Fleming. When that report was received, arrangements were made by Comcare to refer the request for rehabilitation to the Commonwealth Rehabilitation Service (“CRS”). Eventually that agency engaged a Miss Avgeropoulos to undertake a vocational assessment of Mr Fleming.
6. I should add at this stage that it is unclear whether Mr Fleming applied for rehabilitation as a Naturopath or whether Ms Avgeropoulos made the assessment that it was a potential vocation consistent with opinions expressed by Dr Large and Mr Fleming, in consultation. The reports of Dr Large (T42, p84) and Ms Avgeropoulos (T44, p90), the decision of ABS (T47, p103) and the letter of Mr Fleming (T50, p107) suggest that there was a focus, by all relevant persons, on an assessment being undertaken of a vocation in “alternative health”, with naturopathy apparently being the preferred or chosen option.
7. Miss Avgeropoulos provided a report (T44) which is undated but refers to an assessment of Mr Fleming on 5 January 2000. She concluded that whilst Mr Fleming “probably has the intellectual capacity to complete the requirements of a tertiary course in Naturopathy [but] from my 3 hour assessment of him, I anticipate that he would continue to experience interpersonal difficulties”. She assessed Mr Fleming as being limited to managing part-time hours of work only, that she was of the belief that retraining would not allow him to earn “a ‘living wage’ or re-enter the workforce in any ‘real’ income-earning capacity” and in the event that Mr Fleming in fact did undertake the retraining “it would most probably benefit him in a therapeutic sense at most, and not necessarily in a financial sense” (refer pages 91 and 92).
8. On 17 August 2000 Comcare wrote to Mr Fleming and advised him that the report of Miss Avgeropoulos had been forwarded to Dr Large. Mr Fleming was also advised that the ABS as the employer under s37 of the Safety, Rehabilitation and Compensation Act 1988 (“the 1988 Act”) would determine eligibility to undertake a rehabilitation programme.
9. On 11 September 2000 a case manager with ABS (T47) decided “I am not satisfied that the undertaking of studies in Naturopathy could be considered reasonable in accordance with the provisions of s37 of the Safety, Rehabilitation and Compensation Act, 1988 and have therefore disallowed your claim”.
10. Thereafter Mr Fleming wrote a number of letters to Comcare indicating that it was his intention to undertake a course as an “experimental psychologist”. In letters of 29 September 2000 and 2 October 2000 he indicated that support for this course had been given by Dr Large and in the letter of 2 October 2000 he indicated that the report of Miss Avgeropoulos suggested that he would benefit by undertaking “schooling” “in a therapeutic sense and not in a financial sense”. Accordingly he submitted that Comcare should consider “schooling as medical treatment”.
11. On 12 October 2000 Comcare interpreted the applicant’s letter of 29 September 2000 as a request for reconsideration of the decision made by the case officer on 11 September 2000. A determination was made by (Comcare) on 15 November 2000 affirming the “determination” made on 11 September 2000. Mr Fleming was then notified that if he was unhappy with that decision he could lodge an appeal with the AAT.
12. On 5 December 2000, Miss Cleveland the case manager who made the determination of 11 September 2000, wrote to Mr Fleming acknowledging his request for retraining as “psychologist”. She indicated that she was not prepared to consider any request for rehabilitation in the absence of supporting documentation from medical specialists.
13. On 26 February 2001 Comcare wrote to Mr Fleming in response to a letter that he wrote on 13 December 2000 requesting a review of the decision made by Miss Cleveland on 5 December 2000. Comcare notified Mr Fleming that the letter of 5 December 2000 was not a refusal to grant rehabilitation but was an indication by the ABS “that it will not consider your current request or any further request for rehabilitation until such time as treating specialists advise that your condition has improved to such a level whereby vocational rehabilitation would be considered appropriate”. The letter also advised that until ABS as the employer makes a determination Comcare has no jurisdiction.
14. On 27 April 2001 the ABS decided that it “will not support this application for retraining”. Mr Fleming was advised that the letter of 27 April 2001 should be understood as a determination and any request for reconsideration should be made pursuant to the provisions of the 1988 Act. Such a request was made and ultimately Comcare made its reviewable decision on 28 June 2001 which has given rise to these proceedings. That decision refers to a “determination” of 7 December 2000. I assume that there has been a typing error and it was intended to refer to the letter of Miss Cleveland of 5 December 2000. But that was not a determination (refer paragraph above). The determination reconsidered by the reviewable decision was made on 27 April 2001.
15. This application therefore proceeds to review a decision to reject a request made by Mr Fleming to undertake rehabilitation as an experimental psychologist. For the purposes of s36 of the 1988 Act, the primary determination was made by ABS as the “rehabilitation authority”. Additionally I am satisfied that the person who completed the determination of 27 April 2001 – Mr Graham Hope the First Assistant Statistician, Corporate Services Division of ABS is the “principal officer” within the meaning of “rehabilitation authority” as defined at s4 of the 1988 Act.
16. The relevant provisions with respect to rehabilitation are to be found at s36 and s37 of the 1988 Act which are reproduced as follows:
s 36 Assessment of capability of undertaking rehabilitation program
(1) Where an employee suffers an injury resulting in an incapacity for work or an impairment, the rehabilitation authority may at any time, and shall on the written request of the employee, arrange for the assessment of the employee's capability of undertaking a rehabilitation program.
(2) An assessment shall be made by:
(a) a legally qualified medical practitioner nominated by the rehabilitation authority;
(b) a suitably qualified person (other than a medical practitioner) nominated by the rehabilitation authority; or
(c) a panel comprising such legally qualified medical practitioners or other suitably qualified persons (or both) as are nominated by the rehabilitation authority.
(3)The rehabilitation authority may require the employee to undergo an examination by the person or panel of persons making the assessment.
(4)Where an employee refuses or fails, without reasonable excuse, to undergo an examination in accordance with a requirement, or in any way obstructs such an examination, 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 examination takes place.
(5) The relevant authority shall pay the cost of conducting any examination of an employee and is liable to pay to the employee an amount equal to the amount of the expenditure reasonably incurred by the employee in making a necessary journey in connection with the examination or remaining, for the purpose of the examination, at a place to which the employee has made a journey for that purpose.
(6) In deciding questions arising under subsection (5), a relevant authority shall have regard to:
(a) the means of transport available to the employee for the journey;
(b) the route or routes by which the employee could have travelled; and
(c) the accommodation available to the employee.
(7) Where an employee's right to compensation is suspended under subsection (4), compensation is not payable in respect of the period of the suspension.
(8) Where an examination is carried out, the person or persons who carried out the examination shall give to the rehabilitation authority a written assessment of the employee's capability of undertaking a rehabilitation program, specifying, where appropriate, the kind of program which he or she is capable of undertaking and containing any other information relating to the provision of a rehabilitation program for the employee that the rehabilitation authority may require.
S37 Provision of rehabilitation programs
(1) A rehabilitation authority may make a determination that an employee who has suffered an injury resulting in an incapacity for work or an impairment should undertake a rehabilitation program and, where the authority so determines, it may make arrangements with an approved program provider for the provision of a rehabilitation program for the employee.
(2) A rehabilitation authority must not make arrangements for the provision of a rehabilitation program to its employees other than by an approved program provider.
(3) In 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.
(4) The cost of any rehabilitation program provided for an employee under this section shall be paid by the relevant authority in relation to that employee.
(5) Where an employee is undertaking a rehabilitation program under this section, compensation is not payable to the employee under section 19 or 31 but:
(a) if the employee is undertaking a full-time program—compensation is payable to the person of an amount per week equal to the amount per week of the compensation that would, but for this subsection, have been payable under section 19 if the incapacity referred to in that section had continued throughout the period of the program; or
(b) if the employee is undertaking a part-time program—compensation is payable to the employee of such amount per week as the relevant authority determines, being an amount not less than the amount per week of the compensation that, but for this subsection, would have been payable to the employee under this Act and not greater than the amount per week of the compensation that would have been payable under paragraph (a) if the employee had been undertaking a full-time program.
(6) An employee who is entitled to receive compensation under subsection (5) during a period is not entitled to receive rehabilitation allowance under the Social Security Act 1991 during that period.
(7) Where an employee refuses or fails, without reasonable excuse, to undertake a rehabilitation program provided for the employee under this section, the employee's rights to compensation under this Act, and to institute or continue any proceedings under this Act in relation to compensation, are suspended until the employee begins to undertake the program.
(8) Where an employee's right to compensation is suspended under subsection (7), compensation is not payable in respect of the period of the suspension.
17. A “rehabilitation program” is defined at s4 of the 1988 Act as follows:
rehabilitation program includes medical, dental, psychiatric and hospital services (whether on an in-patient or out-patient basis), physical training and exercise, physiotherapy, occupational therapy and vocational training.
18. “Rehabilitation” of itself is not defined, but for the purposes of this review I adopt the findings of the Tribunal in Re Fox and Department of Defence (1996) 40 ALD 614 at 620 where the Commonwealth Occupational Health and Safety Manual, was used to define “rehabilitation” as the aim of “restoring an injured individual to their fullest physical, psychological, social and vocational capabilities”.
19. At the conclusion of the hearing the matter was adjourned to permit both parties to lodge written submissions.
20. In a written submission lodged by the respondent it was submitted that Mr Fleming is not a “employee” within the meaning of s36 and s37 of the 1988 Act and therefore the respondent has no liability to provide a rehabilitation program. The respondent acknowledged in its submissions that this issue did not emerge at all during the hearing and should the applicant wish to make submissions upon this issue that no opposition would be forthcoming from the respondent.
21. It is unfortunate that this issue has now emerged but I believe that it can be rapidly decided.
22. Section 36 of the 1988 Act does refer to an “employee” who has suffered injury and the assessment of “the employee” when a request is made for eligibility to undertake a rehabilitation program. Section 37 of the 1988 Act refers to the entitlement of a “rehabilitation authority” to determine that an “employee” should undertake a rehabilitation program. There is no dispute in this review that the applicant was an employee of the ABS but ceased that employment in October 1978 by reason of medical impairment. Section 5 of the 1988 Act defines an “employee” and most of its provisions do concern a person who is currently in the employ of an employer. However at sub-section 9, an expanded definition of “employee” appears and it is reproduced as follows:
(9)A reference to an employee in a provision of this Act that applies to an employee at a time after Comcare, an administering authority, a licensed authority or a licensed corporation has incurred a liability in relation to the employee under this Act includes, unless the contrary intention appears, a reference to a person who has ceased to be an employee.
23. In Re Cook and Telstra Corporation Limited [2003] AATA 786 the Tribunal decided that an employee of Telstra who had accepted a redundancy offer and ceased working had ceased to be an “employee” within the meaning of the Act and the employer had no obligation to rehabilitate. I make no comment upon that decision except to note that the circumstances of the employment are different as to that applying to Mr Fleming who ceased employment as medically unfit upon the initiation of the employer. Additionally I note that in Australian Telecommunications Corporation v Moffat (1992) 15 AAR 289 consideration was given to the meaning of s5(9). I am satisfied for the purposes of this decision that Comcare has incurred a liability in relation to Mr Fleming since it was established by the 1988 Act and has continued to incur a liability (refer s5(9)) as evidenced by its continuing to pay weekly compensation and medical and like expenses for his treatment. I can see nothing from the provisions of s36 or s37 that would exclude Mr Fleming as an “employee” within the meaning of those sections. Additionally I can see no “contrary intention” appearing from s5(9). Indeed I would be satisfied that the spirit and obligation under the Act to provide for the rehabilitation and the compensation of injured workers does not cease upon the employment being terminated.
24. Accordingly I am satisfied that for the purposes of this review Mr Fleming is a “employee” within the meaning of s5(9) and for the purposes of s36 and s37 of the 1988 Act.
the section 36 assessment and report
25. The employer arranged for Mr Fleming to be assessed by Miss Maria Avgeropoulos of the CRS on 5 January 2000. Her report is found at T44. Mr Fleming submitted at the hearing that he had only been assessed with respect to his initial application to be retrained as a Naturopath. He submitted that an assessment was not arranged after he applied for rehabilitation to be trained as a psychologist. Such an assessment was not arranged by the employer (I will deal with this issue later) however the report of Miss Avgeropoulos is predicated upon her belief that the “purpose of assessment” was to “determine his retraining needs to enable him to re-enter the workforce”.
26. Miss Avgeropoulos obtained a history of the applicant’s illness and his incapacity from 1978. She reported that Mr Fleming had symptoms of (page 89):
·regular bouts of depression where he would be unable to perform any work until his mood improved.
·sudden, short-lived episodes of intense range and aggression. Mr Fleming has a history of “road-rage” incidents and stated that too much traffic, noise or car horns can trigger such a reaction. Mr Fleming claims to have little or no memory of the events afterwards.
·panic attacks on a monthly basis, sometimes occurring in crowded situations and sometimes at home.
·severe headaches on a monthly basis.
27. Miss Avgeropoulos interpreted the above symptoms as indicating (page 89):
. . . that Mr Fleming is unable to work in a “normal” workplace or adhere to “normal” work patterns. The unpredictability of Mr Fleming’s moods, and his inflexible maladaptive pattern of relating require him to work in an environment which he has control, and in which there exists little chance of interpersonal conflict. Mr Fleming’s ability to sustain work performance fluctuates with his moods, and therefore his productivity levels are subject to extreme fluctuation.
28. The observations of Miss Avgeropoulos were reported as follows (page 90):
Mr Fleming presented as fairly anxious and defensive during the assessment. He displayed underlying hostility towards his previous employer and the assessor. Mr Fleming’s symptoms are ego-syntonic, that is, they appear to create no distress for him, despite the impact they have on others. This is common in individuals suffering from personality disorders and presents as a significant problem when engaging in activities which require interaction with others.
29. After a “psychometric assessment” was completed – which involved an assessment of personality using the “Myers-Briggs indicator” Miss Avgeropoulos reported (page 91):
Mr Fleming’s responses were characteristic of someone who usually enjoys fields where they can rely on their analytical and logical thinking. Individuals with Mr Fleming’s “type” are usually good at pure science, research, mathematics or engineering. They are often more interested in the challenge of finding solutions to a problem than in putting solutions to practical use.
If individuals with Mr Fleming’s “type” feel they are not appreciated for their contributions they can become frustrated and may become cynical and negative, isolate themselves and become critical and argumentative. Under great stress these individuals may erupt into inappropriate displays of emotion which can be quite unnerving to others. The preferred work environment for such individuals is one which provides opportunity to solve complex problems, is flexible, quiet and allows privacy.
The Vocational Preference Inventory (VPI) is designed to assess such individuals’ reported occupational interests. The VPI results support the comments made above. Individuals with his combination of scores are usually planful [sic] and analytical. They are usually interested in the sciences, including engineering, chemistry and biology.
FACTORS RELATING TO WORK:
Mr Fleming reported that he had successfully completed his past computer studies undertaken on a part-time basis. There is little reason to doubt that Mr Fleming has the intellectual capacity to cope with tertiary study. His past qualification was in a field to which he was well suited and provided the opportunity to work in an environment described above.
Although Mr Fleming possesses an interest in preventive medicine, his capacity to deal with the interpersonal situations which occur within the context of a naturopathic consultation is doubtful, in my opinion. This may become a point of concern during the practical phases of the course, and more so in private practice.
Mr Fleming stated that his motivation for doing the course was for the therapeutic benefits which would make his brain ‘quieten down’. He stated that his treating psychiatrist suggested that retraining would give him a focus.
30. In conclusion Miss Avgeropoulos reported (pages 91 and 92):
Mr Fleming is a 51-year-old man with a diagnosed personality disorder, who experienced a stressful environment at work over 20 years ago.
Assessment has identified that Mr Fleming probably has the intellectual capacity to complete the requirements of a tertiary course in Naturopathy. From my 3 hour assessment of him, I anticipate that he would continue to experience interpersonal difficulties.
From a vocational perspective Mr Fleming will be limited in his capacity to work consistent hours and at best he may manage part-time hours. I do not believe that further retraining will allow Mr Fleming to earn a ‘living wage’ or re-enter the workforce in any ‘real’ income-earning capacity.
Factors such as Mr Fleming’s ability meet entry criteria and be accepted into a course and his entitlement to retraining under ComCare are outside the scope of this report. However, should Mr Fleming proceed with retraining, in reality it would most probably benefit him in a therapeutic sense at most, and not necessarily in a financial sense.
31. The applicant’s former solicitors arranged for him to be assessed by Frank Fleming (no relation) of “Flexi Personnel” who provided a report on 11 December 2000. A curriculum vitae (“CV”) attached to the opinion expressed by Frank Fleming records that he is the proprietor of Flexi Personnel “specialising in permanent recruitment and temporary hire of candidates into office, manufacturing, warehousing, construction and building industries”. Frank Fleming has the formal qualifications of an Associate Diploma in metallurgy and has studied “aeronautics” and “business administration”.
32. Frank Fleming reported that the applicant had successfully completed a computer mechanics/technicians course at RMIT where he had been awarded a prize as the best student for two years. Thereafter the applicant became employed in the computer industry. Additionally he learnt that the applicant had studied kinesiology where he had also written teaching courses and had been acting as a voluntary mentor for kinesiology teachers.
33. Frank Fleming noted that the applicant’s “skills revolve around statistical compilation, technical computer mechanics and or programming. He has an interest and qualifications in alternative medicine, kinesiology and believes he could be trained in psychology as a means of getting back into the workforce. He sees this as a way to keep his mind active and it is a subject he has become interested in”. Frank Fleming was of the view that the applicant did have “the capacity and will power to complete the course and the process of doing the study and learning process would likely be helpful in his rehabilitation”.
34. Frank Fleming dealt with the applicant’s health and career goals in the following terms (p3):
Health Limitations – David’s past limitations have related to his inability to cope well with:-
1.Physical or verbal confrontation with people
2.His temper, should anyone upset him
3.Loud noises or constant chattering of a lot of people in say, an open plan office
4.Confined spaces such as in crowded lifts or similar places.
I raised the question about his current ability to handle any of these stressful situations. David acknowledged that as a younger man in the past, he had a tendency to ‘snap’ and become aggressive towards any physical or verbal abuser.
However, now that he is older, David has been able to control himself much more in these situations, and simply withdraws or walks away from confronting situations. David said he has been able to do this by adopting a semi continuous state of meditation to control such potential outbursts.
Career Goals – David does not want to become a practising psychologist, where he would be required to help patients to come to terms with issues, such as he himself had to cope with. David’s desire is to work solely in the field of research, where he would be essentially working on projects involving statistical analysis. His son Robert, suggested that his best vocation would be in the fields of research work. I am inclined to agree, particularly if he has an appropriate work environment.
35. In conclusion Frank Fleming reported the following:
OPINION SUMMARY AND CONCLUSIONS
David’s multiple mental breakdowns were some 35 years ago. His current psychologist, Dr. Alan Large, said in his reports dated May 25, 2000, that David is able to undertake a work program which has appropriate working conditions.
Based on David’s test results and his past performance in passing the RMIT computer course (even while heavily medicated), I feel that he has the capacity to pass the course. The CRS Australia report by Maria Avgeropoulos, dated January 5, 2000, also indicated that he would benefit therapeutically from the course.
He may then be able to participate in a gradual return to work program in suitable employment, possibly at a University. This may well lead him into research work on statistics in which he says he loves, and has a lot of experience. His desire to move into statistical research work however, is currently restricted because he has no formal qualifications (psychology) in that field.
David seems to be mentally much better these days, so in my view the psychology degree course that he is seeking financial help with is most likely to be a reasonable form of rehabilitation for him.
The ABS may wish to support him financially, making it conditional on him passing the course.
36. I note in concluding this part of the decision that Frank Fleming does not possess nor does he purport to have any qualifications with respect to rehabilitation.
Mr Fleming
Why seeking a course in psychology as rehabilitation?
37. Mr Fleming said his choice of a course in psychology was initiated from discussions he had with his treating psychiatrist, Dr Large. Together they consulted a list of suggested vocations from the CRS test conducted in 2000. Mr Fleming said they decided “the nature of the course to be rehabilitative would have to include an ability to, or a way of communicating to me behavioural problems, and how to correct those”. He said that the psychology course “stood out” on the list. He suggested this was because “it would cover learning about psychology, brain conditions, how to correct them, treatments, etcetera”.
38. Mr Fleming stated rehabilitation in his case was necessary because his “behavioural condition is unpleasant and possibly dangerous, and I was on medication for a long time and I had been invalidated out since 1977”. Mr Fleming also submitted that he finds studying therapeutic (which he found prior in 1999 when studying kinesiology) as his “brain started working better, and my doctor slowly reduced my medication until about 1999 I was taken off them, and I haven’t had to be on medication since”. Mr Fleming argued that the psychology course is appropriate because he believes “that a course that is specific to brain conditions, and being made aware of good and bad behaviour and how they are treated, and what actually is normal, would help me become normal”. In cross examination he stated that his primary focus by rehabilitation is to treat his condition and secondly to work as a research psychologist, which he said he would “enjoy very, very much”.
39. If he were unsuccessful in his application to undertake a course in psychology, Mr Fleming said he had “absolutely no idea” of how he would react. He said that “he could imagine” what his response would have been when he was the person depicted “in all of the previous reports”, but hoped with the techniques he has developed in managing his emotions, that his “response would be zero”.
40. To substantiate that positions for psychologists are available Mr Fleming produced an advertisement placed by Centrelink, in The Age Newspaper on 31 May 2003. Omitting irrelevant parts, the advertisement reads: -
Centrelink is a Commonwealth agency providing services to the Australian people on behalf of public and private sector organisations. Centrelink helps people on behalf of public and private sector organisations. Centrelink helps people explore their options by linking people and resources that helps them through transitional periods in their life.
The Psychology Service is a rapidly growing part of Centrelink’s business on behalf of the Commonwealth Government. To meet the demand, we are seeking about 50 psychologists nationally.
Centrelink Professional Band 1
Salary range $33,987 - $56,154 plus
oattractive superannuation benefits
oup to 50 positions, nationally
If you are a fully qualified and fully registered Psychologist who is interested in making a difference, a position working as a Centrelink Psychologist could be for you.
The successful applicants will be well versed in making sound clinical assessments with the ability to gain trust quickly. You will need to demonstrate your exceptional customer service skills and to exercise sound mature judgment and problem solving. Excellent oral communication and liaison skills and a flexible approach are also required. A capacity to work in a diverse team environment, with a business focus, and an understanding of cultural change are vital.
41. Mr Fleming said that his son was successful in obtaining one of these positions in the Oakleigh office of Centrelink.
Capacity to work and earn income
42. Mr Fleming was asked questions relating to his capacity to work and earn income. He admitted that he had not earned any income from kinesiology, and had not earned income since he ceased working in the computer business. He agreed that in one year, whilst he was undertaking the computer work, he performed about 80 hours of work. He rejected the suggestion in cross-examination that 80 working hours in one year was related to his illness. He said it was because he had solved the problems his clients presented him and therefore the work consequently finished.
43. Mr Fleming did not accept the opinion of Dr Large in his report of May 2000 that his condition is not amenable to treatment. He also rejected Ms Avgeropolous’ findings that he has a limited capacity to work consistent hours, that at best he could manage part time hours, and her belief that further re-training would not permit him to earn a living wage. Additionally, he rejected the respondent’s suggestion that he would not be able to impose time schedules or time frames on his work, that he would not be able to have a person monitoring or supervising him and that he would have to avoid interpersonal contact as much as possible.
44. In relation to his tolerance to being supervised, Mr Fleming recalled that whilst he was at RMIT undertaking the computer course, he “had a teacher that was supervising my work at all times, and I coped there quite well. I was the top student for two out of three, first three years”. He said he thought he would cope with his work being monitored and with “interpersonal contact” but would not cope with supervision if it was “arbitrary”. Mr Fleming said he could work in a confined space but not an open plan office. He also said he would prefer to work flexible part time hours but agreed that he could not impose this ideal as a term of any employment.
45. Mr Fleming gave the example of his ability to handle stress by pointing to his conduct during the hearing of this review. He said that he had not become “upset with anybody”. He said appearing at the Tribunal was “unbelievable stress”, yet he managed because he “paused at certain times to regain thought and lower any stress levels that are coming or wanted to come up in me”.
46. Mr Fleming also spoke of an occasion that occurred whilst he was working in the computer industry, where the systems of a major client had broken down. He said that prior to the problem occurring, he had referred the client to a technician who was an expert in the program that the client sought to have installed. The technician was unable to successfully install the program and had abandoned the project. Mr Fleming said that several of the workers of the client’s company were very upset and making complaints. Mr Fleming said he managed to solve the problem successfully although it was a situation that many people would find stressful.
47. Mr Fleming stated that he no longer suffers headaches and neck tension, because a “kinesiologist corrected that for me”, but he remains intolerant of loud or unexpected noises.
Behaviour
48. Mr Fleming admitted that he is vulnerable to being provoked into states of explosive anger but added the frequency had reduced. He said to behave like that would require “severe provocation now, whereas it was a lot less then”.
49. Mr Fleming admitted to having two outbursts of anger in the 12 months previous to the hearing, that he could remember. He recalled one incident where he was at a McDonalds Food Store where he was having breakfast on a Saturday morning and when it was relatively crowded. He said that he got out of his seat, to obtain a cup of coffee, leaving his glasses, newspaper, radio and remaining breakfast with the intention of returning to his table. When he did return, he found that it had become occupied by a family of Pakistani descent and his radio, glasses and remaining breakfast had been placed on a nearby bench. He said he found that amusing as it resembled a “common kind of joke” that “you can't even leave your seat without a family of Paki’s moving in”. He said that he approached those persons and asked “what in the hell happened here”. He said an adult male member of that family commenced to abuse him using words to the effect that “Australians are filthy people”. The male adult got up from his seat and went to retrieve Mr Fleming’s items from the nearby bench but in so doing his fingers came in contact with the remaining breakfast items and Mr Fleming’s glasses were placed in some jam on his plate. Mr Fleming said that the male person continued his “barrage” and Mr Fleming said that he felt his anger emerging because he was experiencing severe shaking. He said when he experiences this sensation he starts to “detect” other persons’ vulnerabilities. He took note of where the other person’s wife and children were sitting and when he realised that he was preparing to throw his coffee into this man’s face he deliberately dropped it. He said “the only aggro thing that I did was probably upturn my plate of fingerprinted muffins and placed it in his wife's breakfast and I walked out”.
50. In responding to the Tribunal’s question of what he would do if a similar event occurred now, he said he would retrieve his glasses and radio and walk out as “It is just not worth the hassles”. He said that “this is why I want to do rehabilitation” that is, in order to learn how to control himself in stressful situations.
Problems with authority
51. In cross examination Mr Fleming gave evidence that during his time at the computer business he “just left that organisation and didn't do work for them” for a period. This was due to conflict with the owner of the business. He said the owner’s “business was going badly, and (his) cheques were bouncing, and he was a person that stood over my shoulder all the time, so I considered it would be more appropriate to leave”. He said that under his contract of employment he was to undertake most of his work at home, however his employer “then wanted me to do it inside his office”. He said that the situation was exacerbated by him taking prescription drugs, he was, at that time, experiencing neck and headaches and his “wife basically gave me an ultimatum to leave” this work.
Mr Fleming’s view of suitable work
52. In support of a submission that psychologists can work flexible and part time hours, Mr Fleming gave the example of his son’s work at Centrelink in the Oakleigh office. He said “Oakleigh had been granted enough hours for 2.4 jobs, which meant that they could hire three people at .8, they could hire two people at full and one person at .4 of a working week”.
53. In response to questions from the Tribunal, Mr Fleming was firm in his preference to work only in a Commonwealth agency as he was concerned that if he worked in the private sector or with the State Government, his superannuation entitlements may be affected (and he had his wife’s security to consider). He also said he was willing to work with primary school aged children and elderly persons but not teenagers, as he was not sure how he would cope.
Cost of the course
54. On this subject, Mr Fleming said RMIT informed him the cost is “basically $4000 a year for the entire duration of the course, whether it be six years or to a PhD”. He said that Monash University had advised him that the first three years of the course is the equivalent of HECS cost, that they had not determined costs for post-graduate courses, and “they could only assume that it would be what it is now”, which is slightly higher than HECS cost. He said the person who he spoke with said most rehabilitation providers pay full fees, which he said was very expensive.
55. Mr Fleming confirmed that these figures do not include additional items, such as books, course materials and university fees. Additionally, he may incur the cost of a laptop computer together with statistical software.
Reduction in liability
56. Mr Fleming said that according to his calculations, Comcare would save approximately $5000 per year being the amount it pays as compensation to him, and savings on superannuation would be $25,000 a year. He estimated that the income tax he would pay when working would be $15,000 a year.
Age at qualification
57. Mr Fleming who is presently 56 years of age said that a psychology course of full time study at either RMIT or Monash University would be completed in six years. He would then be 62 years of age. If he undertook a PhD upon graduation he would be 64 years when his doctorate would be conferred.
Dr Alan Large
58. Dr Large is a Fellow of the Royal Australian College of Physicians, a Fellow of the Royal Australian and New Zealand College of Psychiatrists, he has a Diploma in Psychological Medicine and is a member of the Royal College of Psychiatrists of England. Dr Large has been treating the applicant regularly since 1977.
59. Dr Large reaffirmed the opinion in his report dated 25 May 2000 (T42) that the applicant’s “personality disorder is not itself amenable to medical treatment and it contributed to his current level of incapacity”, but explained that personality disorders “go through life” that in the applicant’s case it was “contributing only in respect to his vulnerability to reactions to stress”.
Outbursts
60. Dr Large was taken to his report in 2000 where he stated Mr Fleming is vulnerable to being provoked into explosive anger and consequently fears harming others. Dr Large said that “he is vulnerable in the sense that he is perhaps more touchy than the average person… but it is not a manifest problem at this stage”. Dr Large added that this report was completed three years previously and Mr Fleming had made “a bit more progress” since that time.
61. At present, Dr Large said that he asks Mr Fleming at every visit whether he has had any outbursts and “mostly he says no”. He said Mr Fleming occasionally becomes irritated and gave an example of traffic being such a setting but said he “no longer loses his temper”. Dr Large was of the opinion that Mr Fleming is able to put forward his objections “in quite a civil way nowadays”.
Suitable course?
62. When Mr Fleming asked Dr Large whether the psychology course was a suitable program for him, he said “there is no reason why it wouldn’t, yes, given your interest and your motivation in that area, and I am sure you would be quite capable intellectually of handling that”. He added “because it would allow you to bring to bear your intellect and thoughtfulness, and your interest and motivation to address questions in this general field of psychology”.
63. In re-examination Dr Large agreed that it is an unrealistic expectation of the applicant that he would become “normal” and his behavioural problems would thereby be corrected by undertaking the course. He opined that this would not be a “direct effect”, but rather the course would enable him to “learn probably a great deal more about the background of the kind of condition that he has”. Dr Large rejected that this could be achieved by Mr Fleming undertaking relaxation exercises and counselling and said the psychology course would be more effective. Dr Large said that the course would serve “primarily towards getting him into a position where he can contribute to the workforce”. Whether research in psychology was a suitable career for Mr Fleming, Dr Large said “I think he possibly has a particular talent in that direction, to ask useful questions, and that is why I think experimental psychology would be probably a field that he should be interested in”.
Dealing with stress
64. Dr Large was confident that Mr Fleming could deal with stressful situations. He indicated that the applicant had improved “very considerably” over the years due to the treatment he had received, by not working for a long period of time and because he had become “older and wiser”. He said the particular types of stresses the applicant suffers are “being subject to arbitrary authority or being opposed in an unreasonable way by people”. He added that these situations are “general” and said “in recent years there has been very few occasions where that kind of situation, that kind of stress has been occurring”.
Ability to work
65. Dr Large said he could not think of any reason why Mr Fleming could not be employed as a psychologist. He said that he knew of psychologists, including research psychologists, working at 75 and 80 years of age. He stated that with Mr Fleming’s “interest, motivation, and given the opportunity, retirement would not be part of the picture”.
66. Dr Large said he would not put any limits on Mr Fleming’s interpersonal contact in the workplace and that he did not see it as a problem for Mr Fleming to deal with customers as he “has good relationship skills at this stage”. Dr Large agreed that Mr Fleming had shown an interest in “the last few years of actually serving other people. . . . (because of) your interest in kinesiology, and I think I would regard you as quite highly motivated to make a contribution to the public welfare”. In terms of his ability to work with co-workers, Dr Large said Mr Fleming should preferably work “either on his own or with a small team, or in circumstances where he was able to, as it were, think his own thoughts”.
67. Dr Large also gave evidence that Mr Fleming could cope with meeting timeframes. As an example, Dr Large said Mr Fleming “always keeps his appointments very promptly with me” and added “he is not a lazy person. He would be a productive and active person”. He acknowledged Mr Fleming is sensitive, but added “he is also quite a sensible person”.
68. In reference to the Centrelink position calling for good oral communication, liaison skills and undertaking a flexible approach, Dr Large said that those advertisements list ideal qualities where in reality they recruit “very average kind of people”. He said that in any event Mr Fleming could meet those requirements as “his dealings with the kinesiology clients show that he is quite capable of dealing in an acceptable way with people's requirements”.
Suitable work
69. Mr Fleming thought a suitable position would be found with the assistance of the respondent in a university or a government industrial enterprise. He said that there are jobs other than the advertised position at Centrelink. Dr Large agreed that the Centrelink position would be fairly stressful and thought that setting would not be appropriate for Mr Fleming. He said that rather than being a “wage earner”, Mr Fleming would be suited to contract work in undertaking research. He thought it would be preferable for Mr Fleming to work “fairly busy part-time” hours, rather than full time.
resumed hearing
70. After the first day of hearing the respondent arranged for Mr Fleming to be assessed by Dr Peter Cook a clinical psychologist. It also sought an opinion from Professor Vicki Anderson of Melbourne University. When the matter resumed the report from Professor Anderson had not been completed and whilst the report of Dr Cook had been provided to Mr Fleming, he had not had an adequate opportunity to consider it or discuss its contents with Dr Large.
71. It would not have been appropriate or fair to Mr Fleming to call Dr Cook and Professor Anderson in these circumstances. After some discussions it was agreed that no further evidence would be heard and the parties agreed to conclude the review by filing reports of Professor Anderson and Dr Cook and then lodging written submissions. The remaining part of these reasons is a summary of the reports of Dr Cook, Professor Anderson and Dr Large who completed another report after discussions with Mr Fleming and after he also considered the transcript of the first day of hearing.
Professor Vicki Anderson
72. Professor Anderson who compiled a report of behalf of the respondent dated 4 November 2003. She is currently a Professor in the Department of Psychology of the University of Melbourne and the deputy president of the Psychologist’s Registration Board of Victoria. Among her other qualifications she holds an Honours degree as a Bachelor of Arts, a Master of Arts in Clinical neuropsychology and obtained her Doctoral degree in 1991. She is a registered psychologist in the state of Victoria and a member of the College of Clinical Neuropsychology and Australian Psychological Society.
73. Professor Anderson prefaced her report acknowledging that she has not personally assessed Mr Fleming and that her evidence regarding aspects of psychology courses are mostly based on her knowledge of University of Melbourne and not psychology courses generally.
74. She reported that the pre-requisite for entry into the University of Melbourne is to gain a Year 12 entry score, usually at about 80, and “perhaps” lower at other institutions. A small number of students are accepted via other avenues including the “Community Access Program” (e.g. mature age students). This program is apparently fee paying.
75. She reported that the course requires: -
skills in scientific thought, logic, mathematics and statistics. High level comprehension and writing skills are also important. In addition, students are required to be involved in laboratory activities (all courses in Australia) which involve small group context and the application of scientific knowledge. Finally, to meet criteria for post-graduate studies, students must achieve high-level results (usually above 70/100 in all courses) on a regular basis. To do this, in a group of intelligent students, high level organisational and study skills are important.
At a personal level, learning contexts at universities often require high levels of tolerance of other students, the capacity to work co-operatively in groups, an ability to meet deadlines, and accept criticism.
76. With respect to job opportunities, Professor Anderson reported that “overall”, prospects were “good” for psychology students with post-graduate qualifications. Professor Anderson thought that this may not be the case with Mr Fleming as it may take him longer to complete the course. She said in her experience “special needs” students such as Mr Fleming, require more time to complete the course because such students find the “demands of a full-time load very stressful”. She acknowledged that employers are not permitted to discriminate regarding age, yet she felt that realistically, an employer may not be willing to train an employee of his age as they may feel they are unlikely to get sufficient benefits from doing so. She stated that “some psychologists” work into their late 60’s and 70’s but they are usually “eminent psychologists” with “high profile careers”, and for the most part, they work part time.
77. Specific to the Centrelink position, Professor Anderson reported that limited positions are available in “such agencies”. She also observed that experimental psychology, which is the area in which Mr Fleming expressed an interest, is not the nature of the work at “an agency such as Centrelink”. She further comments that it “may be seen as naïve to imagine that after seven years of study only one job context would be considered”.
78. Prof Anderson perceived by reading the transcript of the first day of hearing that Mr Fleming seemed to be motivated by his son’s work as opposed to his “own research and interests”.
79. Professor Anderson also reported upon the nature of project or research work in psychology. She expressed her opinions based on her experience as a “research psychologist (and) I have worked on a number of projects, and supervised a large number of psychologists in that context”. She said that this type of work allows the worker autonomy for “a great proportion of the time’. She said that this can permit working at home, however the work is subject to a number of stresses including “completing work by submission dates (e.g. publications, grant applications), accepting feedback (from reviewers, peers), constant anxiety around future funding”.
80. With respect to the cost of undertaking the course Professor Anderson reported that: -
At present, HECS fees are about $4,000 per year, with this figure increasing annually. If a student is not eligible for a HECS based course and needs to enrol in a fee paying course the fees are much higher and vary across universities. At the post-graduate level, HECS places in professional courses are very competitive, and students will generally require very high grades (ie 80+) to achieve a scholarship. Fees for these course [sic] at present are $14,700 per year at UM. Research based degrees are less expensive and many students obtain scholarships to complete such courses.
Dr Peter Cook
81. Dr Cook prepared a detailed report on behalf of the respondent, dated 27 October 2003 having assessed the applicant in the same month. He is a registered psychologist in Victoria and is a member of the Australian Psychological Society and the Society’s College of Clinical Psychologists. He holds a first class honours degree in Science and a Doctoral Degree. He is also a member of the Board of the Psychologists Registration Board of Victoria.
82. Dr Cook summarised Mr Fleming’s education and reported that he finished his matriculation in Sydney yet repeated it in the following year, when his family moved to Melbourne. Apparently he had to repeat the year due to differences in the education systems. Mr Fleming informed Dr Cook he had previously covered much of the work and “some other kid’s didn’t like that”. This discord led to a number of fights and Mr Fleming practiced his karate on the other students which resulted in “them lying on the ground” or needing “to go to the infirmary”. Dr Cook reported that Mr Fleming “said (speaking partly in the present tense) it happens so quickly, there’s no anger involved, I don’t know if it’s my training or if my condition existed back then”. Dr Cook also reported Mr Fleming told him he was a highly competent student especially in mathematics.
83. Dr Cook discussed with Mr Fleming his “lack of ongoing involvement in kinesiology”. The reasons Mr Fleming gave for this included differences of opinion with the Kinesiology Association regarding appropriate training. Essentially Mr Fleming apparently feels kinesiology is easy to master and the Association required continuing training for members to achieve accreditation. Another reason was for financial considerations. With regard to the applicant not pursuing further work in computers Dr Cook reported that Mr Fleming “indicated that whereas many men enjoy working in their shed, computers serve that purpose for him and he didn’t wish to turn a pleasurable activity into a career”.
84. Regarding outbursts and aggression Dr Cook concluded that “while improved control has been attained his own description of recent incidents suggested that he is still highly vulnerable”.
85. Dr Cook thought the objective of the course for Mr Fleming, to gain a greater insight into his condition, was “highly arguable”. He said “Undergraduate psychology training (i.e. the first four years) is highly academic and there is little emphasis on the areas which Mr Fleming believes would benefit him”. He said this is also likely to be the case in undertaking a research based Ph.D..
86. Dr Cook added that this objective is also unlikely to be realised as he does not appear to be “insightful or reflective” because he favours “straightforward and concrete solutions”. Dr Cook reported “Many experienced psychologists (including the author) hold the view that theoretical understanding is in no way a substitute for personal therapy if an individual is seeking insight and self understanding”.
87. Dr Cook believed the most likely avenue in which Mr Fleming could gain a greater insight into his condition is by “appropriate psychotherapy”. Dr Cook specifically advanced the treatment of “Dialectic Behaviour Therapy and Interpersonal Psychotherapy”. He reported that these treatments “are yielding positive results in an area previously considered to be one in which little therapeutic change could be achieved”.
Response by Dr Large
88. In a report dated 10 November 2003, Dr Large responded to the content of the reports of Dr Cook and Professor Anderson. His response is relevantly summarised below.
89. Dr Large took issue with Dr Cook’s observation that Mr Fleming lacked insight as evidenced by his “very high level of self belief”. Dr Large stated that his self belief “is often compensatory for an underlying measure of diminished confidence but it can lead an observer to the misconception that insight is lacking”.
90. Dr Large observed that the conflicts Dr Cook referred to between Mr Fleming and other students “could well be interpreted as contests of power typical of teenage boys in the school ground”.
91. In regard to Dr Cook’s opinion that Mr Fleming remains highly vulnerable as evidenced by the episode at McDonald’s, Dr Large said the incident revealed “evidence of as much restraint as overt action in a situation in which he was abused”. Dr Large also pointed to Mr Fleming having developed a capacity to cope with stress and noted that his condition has and continues to improve. He said that it is intended that Mr Fleming will continue to have ongoing supportive treatment.
92. Dr Large also addressed Dr Cook’s concern that studying psychology is not a pathway to achieve personal understanding. He reported that the course is not primarily directed towards this, though some benefit in that respect may occur. He also reported the course was not intended as a substitute for personal supportive psychotherapy. He reported the aim of the training is “primarily to rehabilitate his capacity to perform useful work and to be occupied in gainful employment in the area of experimental psychology”.
93. The alternative treatments outlined by Dr Cook were according to Dr Large, unlikely to benefit Mr Fleming than the supportive psychotherapy he has been having. Dr Large indicated that studying and working in psychology would provide Mr Fleming with a benefit beyond that which can be achieved from receiving his personal supportive psychotherapy only.
94. In response to Professor Anderson’s report, Dr Large felt that her outline of the requirements necessary to study psychology being tolerance of other students, the capacity to work cooperatively in groups and accept criticism would not “present significant difficulties for Mr Fleming”. Similarly he felt that the description outlined regarding work in research psychology and its stresses, are matters that Mr Fleming could successfully deal with.
submissions
Applicant’s written submissions
95. Mr Fleming contended that it is accepted between the parties and in case law that a university course can be a rehabilitative “solution”.
96. In addressing the criteria of costs, Mr Fleming relied on Hardin v Comcare (1995) 21 AAR 392 and said this case supported the s37 criteria that the course would be of benefit to public revenue in regard to his contribution to superannuation and taxation through employment. He argued that if these factors were considered in calculating the offset in liability to pay compensation, “then the cost of the course is minimalised”.
97. Mr Fleming expressed concern that a written assessment under s36 of the Act was not undertaken by the respondent. He said the written assessment relied upon by the respondent, being the report of Maria Avgeropolous, did not address the suitability of a psychology course, but was made in regard to his earlier claim for a naturopathy course. He therefore submitted that “her assessment could not represent an argument against a psychology course”. Mr Fleming did point out that a vocation in psychology was one of the possibilities in the CRS tests regarding vocations that are suitable for him.
98. In refuting the respondent’s contention that his obtaining employment after completing the course was unlikely, Mr Fleming stated that “age is not an issue (legally) and many psychologists work after the age of 65”. He referred to Dr Large’s evidence in support of this. He also referred to the statements of Professor Anderson and Dr Cook who stated that Mr Fleming’s employment prospects were no more increased if he were to undertake the course by drawing on s 40 of the Act. He submitted that “Section 40 states the Commonwealth has a Duty to provide suitable employment after rehabilitation. THEREFORE the likelihood of employment after rehabilitation MUST be greater than without rehabilitation”.
99. Mr Fleming referred to a report of Dr Serry (Exhibit 2) which stated that it is possible for him to work. Similarly he pointed to the evidence of Dr Large who said he is able to work with certain restrictions. Mr Fleming submitted that the suggested restrictions are found within the work of a research psychologist.
100. Mr Fleming submitted that the likely psychological effect on him if he were not to undertake the program, must be regarded by the respondent as “a substantial reason for rehabilitation”. He based this on the opinion of Dr Serry that refusal to undertake the course would be “a further stress on a man who is already vulnerable to the impact of stress”.
Respondent’s written submissions
101. Mr Ferwerda submitted that it is incumbent on Mr Fleming to satisfy the Tribunal that the correct or preferable decision is the respondent is liable for the cost of the course. It relied on Commonwealth v Muratore (1978) 141 CLR 296 and Bushell v Repatriation Commission (1992) 175 CLR 408. The respondent further submitted, when considered against the criteria in s 37(3), that the course is not only inappropriate but “could be against his health interests”.
102. It was submitted that Mr Fleming held unrealistic hopes and expectations about his ability to undertake the course. An example in support of this contention was Mr Fleming’s statement that the course will assist him to become “normal” and “cure him of his condition”. The respondent also submitted that Mr Fleming sought to deflect attention from relevant issues and submitted that “after considerable questioning, including by the Tribunal, Mr Fleming ultimately acknowledged that he disagreed with Dr Large’s view that his condition was not amenable to treatment”.
103. It was submitted that Mr Fleming has limited prospects of obtaining employment due to his age, employment background and personality disorder. Additionally, it was submitted that Mr Fleming’s evidence to the contrary is “highly speculative and unlikely”. In particular Comcare took issue with his claim to be able to undertake the Centrelink psychologist’s position “quite easily”, especially in light of Dr Large confirming that this position would not be suitable for Mr Fleming. They also pointed to the reports of Dr Cook and Professor Anderson who indicated that obtaining work would be difficult for Mr Fleming.
104. The respondent pointed to the experience of Mr Fleming undertaking the Comcare funded computer course at RMIT which resulted in Mr Fleming pursuing a computer business venture which, according to the respondent, was a “financial disaster”. The respondent argued that the course did little in assisting Mr Fleming in a return to meaningful employment.
105. It was submitted that Dr Large did not appreciate Mr Fleming’s lack of insight into his condition and gave some evidence “without apparent factual basis”. However, the respondent pointed out that Dr Large did agree that Mr Fleming would need “considerable restraints in his employment”, making it unlikely that he would obtain meaningful employment. They also pointed to Dr Large agreeing that the Centrelink position would not be appropriate for him.
106. The respondent advocated that the evidence of Dr Cook and Professor Anderson ought to be preferred as they are more equipped to give expert evidence regarding the requirements and stresses associated with psychology studies and available employment. Comcare noted that Dr Cook consulted with Mr Fleming personally and although Professor Anderson did not, she was provided with a transcript of the evidence of the first day of hearing and did not, unlike Dr Large, accept the evidence of Mr Fleming at face value.
107. The respondent pointed to the written assessment compiled pursuant to s36 by Maria Avgeropolous, who reported that “at best Mr Fleming may manage part-time hours” and her opinion that further training would not result in Mr Fleming earning a ‘living wage’.
108. Comcare submitted that Mr Fleming’s evidence regarding a reduction in the future liability to pay compensation was based not only on his capacity to undertake employment but to complete the course, which it submitted is incorrect. It argued the cost of the course, particularly at post-graduate level is very expensive and would be greater if Mr Fleming did not obtain a HECS funded placement. The respondent also stated that the additional costs were not indicated by the evidence and claimed “It was incumbent upon Mr Fleming to produce this evidence”.
109. On the likely psychological effect on Mr Fleming if the program was not provided, the respondent argued Mr Fleming’s evidence on this held little probative value. The respondent conceded that Mr Fleming’s attitude to the program is one of motivation and keenness, yet also unrealistic and confused. Whether there is any merit to an alternative and appropriate rehabilitation program, the respondent submitted “this aspect is not relevant to Mr Fleming’s circumstances”.
conclusion and reasons for decision
110. Mr Fleming made a number of references on the first day of hearing and in his written submissions to his complaint that the respondent or his former employer had not arranged a rehabilitation assessment specifically directed towards his preferred employment option of psychology. I am not satisfied that his complaint has merit.
111. Section 36 of the Act provides that a rehabilitation authority (the employer) has a discretion of its own volition to request an employee to undertake an assessment of capability to undertake a rehabilitation program. In the alternative, if an employee requests in writing that the rehabilitation authority arrange for an assessment of capability of undertaking a rehabilitation program, no such discretion exists and it must be arranged by the employer. The words “may” and “shall” as appear dictate these interpretations.
112. Additionally s37 of the Act provides that a rehabilitation authority (the employer) may determine that an injured employee who has become incapacitated or impaired should undertake a rehabilitation program and if it so determines it may then make arrangements with an approved program provider to provide a rehabilitation program for the employee. The only compulsion that may be found within s37 is that a rehabilitation authority must consider whether to provide a rehabilitation program. The section does not compel the rehabilitation authority to provide the program (refer Slater v Telstra Corporation Limited) [2001] FCA 1417; refer also to the comments of Finn J in Comcare v Sassella [2001] FCA 1514).
113. In any event s36 refers to capability of undertaking a rehabilitation program and s37 refers to provision of a rehabilitation program. Neither section is specific as to the type or nature of the rehabilitation program nor is it specific with respect to any vocation or profession sought by the injured employee. In the present case however the applicant did request rehabilitation and an assessment was arranged with Ms Avgeropoulos. She completed a report following her assessment and whilst she did refer to the chosen profession of Naturopathy, she made general comments with respect to the suitability of the applicant to undertake and complete rehabilitation. Those comments can be adopted in consideration of the suitability of the applicant to undertake a program of rehabilitation in general terms. I would acknowledge in any event that an assessment of the prospect of successfully completing rehabilitation in the profession of psychology would have resulted in an assessment specifically directed towards the suitability of the applicant to be engaged in that profession, but that evidence has been made available by this review. The nature of administrative review permits a Tribunal to make the correct or preferable decision upon the evidence before it. Accordingly the decision which follows will have regard to the evidence heard from the applicant and Dr Large and by reference to the reports which have been lodged and the documents filed by the respondent pursuant to s37 of the AAT Act.
114. Additionally, the scope of s36(8), being the section relied upon by Mr Fleming, compels the production of a written assessment of an employee’s capability and “where appropriate” the kind of program to which the employee is capable of undertaking. The report of Ms Avgeropoulos indicated that Mr Fleming would have difficulty completing any rehabilitation and even more difficulty obtaining salaried employment. There is nothing within s36(8) that compels a rehabilitation authority to arrange an assessment of the capability of an employee to be rehabilitated into a profession or trade of his or her choosing.
section 37(3) criteria
115. The primary decision made the rehabilitation authority – The Australian Bureau of Statistics – on 27 April 2001 concluded that it “will not support this application for retraining”. I now understand the word “retraining” as it appears in the decision to be a reference to the provision of a rehabilitation program. Little turns on this issue because the reviewable decision made by Comcare concludes (T-documents p147) that the decision made by the rehabilitation authority should be affirmed because the employer was “justified and entitled to come to the conclusion that there was no merit in exercising its discretion to provide a rehabilitation program”.
116. By reason of this review focussing exclusively upon consideration of the applicant’s request to be rehabilitated into the profession of psychology and by reason also of having obtained extensive reports and assessments and having heard evidence upon this issue – indeed having the benefit also of the submissions of Mr Fleming and those of the representatives of the respondent – a more comprehensive analysis of the criteria within s37(3) is now possible.
section 36(8) assessments
117. The contents of the report of Dr Cook have been summarised earlier but for the purposes of this part of the review it is noted that Dr Cook obtained a history of the applicant’s anger and assaults upon other students when he was attending secondary school. He thought the applicant continued to remain highly vulnerable to outbursts, that he lacks insight or reflection and prefers concrete solutions. Dr Cook thought that the applicant would obtain little benefit or insight into his illness by undertaking one of the proposed psychology courses because he thought that such courses were “highly academic”. He concluded that “theoretical understanding” was not a substitute for therapy which he recommended the applicant undertake specifically “dialectic behavioural therapy and interpersonal psychotherapy”.
118. In a report subsequently prepared by Dr Large – after he had the opportunity of reviewing the transcript of the first day of evidence, observing the report of Dr Cook and discussing it with Mr Fleming – he concluded that the applicant was not lacking insight as Dr Cook found but rather he suffered from diminished confidence. Dr Large explained that the schoolyard assaults were capable of interpretation as a “teenage contest of power” and the episode at McDonalds showed that the applicant could resist an outburst of anger because he then showed restraint whilst he was being abused.
119. Professor Anderson thought that the job prospects for psychology graduates were “good” but she regarded Mr Fleming – by reason of his age and period out of the workforce – as being a “special needs student” who, in her experience, take a longer time to complete undergraduate courses. Additionally, in her experience potential employers do discriminate on the basis of age because of a perceived uncertainty in the ability to train and retain that person as a long term employee. Professor Anderson disagreed that psychologist’s work into their 60’s or 70’s but said that some eminent psychologists, in that age bracket, continue to practice but predominantly are part time. She thought that Mr Fleming was motivated by his son’s interest in Centrelink employment rather than having exercised good research of his own into future employment. Additionally it was her view that the advertisement placed by Centrelink for psychologists would have required work not of an experimental nature – which was the preference of Mr Fleming – and she thought that he was naïve that one potential employer only was put forward as the basis of demonstrating the potential for employment. Professor Anderson agreed that research psychology would allow flexible part time hours including the opportunity to work from home but thought that stresses would exist to which Mr Fleming would be exposed being the completion of deadlines, receiving comments from supervisors and uncertainty of funding. Professor Anderson also reported upon the fee structure at Melbourne University which presently is set at $4000 per annum and increases annually for students who qualify for HECS, however the fees are considerably greater in the event that the student is a fee paying student. Additionally she reported that post graduate fees are presently struck at $14,700 per annum for fee paying students but the opportunity to obtain HECS as a post graduate student is “very competitive”.
120. The assessment of Ms Avgeropoulos is summarised earlier in these reasons but predominantly she thought – admittedly the assessment was made in the year 2000 – that Mr Fleming suffered regular bouts of depression which interfered with his ability to work, that he suffered episodes of intense rage and aggression (including road rage) that he suffered panic attacks and severe headaches. She thought that he would be unable to work in a “normal workplace” or work to “normal work patterns”, all of which would affect his productivity level. Ms Avgeropoulos did specifically refer to the requirements for Naturopathy as identified in the DEETYA Job Guide but generally she observed that Mr Fleming presented as anxious, defensive and hostile. She found him to be “ego-syntomic” being a condition which did not cause him distress despite the impact of his behaviour upon others and particularly “when engaging in activities which require interaction with others”. She noted that Mr Fleming stated that his motivation for doing the course of Naturopathy was “therapeutic benefits which would make his brain quieten down”. She was of the belief that Mr Fleming did have the intellectual capacity to complete a course of Naturopathy but he would suffer interpersonal difficulties. She thought that he had limited capacity to undertake employment but may be able to manage part time hours.
121. Dr Serry is a psychiatrist who was engaged by the respondent for psychiatric assessment in August 2002. He completed a report dated 16 September 2002. He was not called to give evidence. He found Mr Fleming to suffer from a personality disorder with mixed features, a chronic adjustment disorder with mild anxiety, depression and intermittent explosive traits. He thought the applicant had an incapacity for employment in any type of stressful environment and any employment would need to be in a “controlled environment where he would have the flexibility to use his current coping strategies for dealing with escalation of stress”. His incapacity at the time of preparation of the interview (in 2002) was reported by Dr Serry to be related to “long term personality issues and a vulnerability to anxiety, depression and intermittent explosiveness”. Nonetheless Dr Serry noted that the applicant had learnt to tolerate stress and thought that he would be more likely to succeed in returning to employment then, rather than at about the time he left ABS in the 1970’s. Nonetheless he continued to place restrictions on the applicant’s ability to undertake employment involving stressful circumstances and preferred the applicant to engage in employment where he could exercise his “stress management techniques”.
122. Dr Serry reported that he could see “no particular impediment” in Mr Fleming undertaking a six or eight year tertiary course in experimental psychology. He noted that the applicant enjoyed study and school work, that he had an interest in psychology and had enjoyed research and noted that his son was completing psychological training. He also obtained from Mr Fleming a history that study assisted him in his ability to cope. Nonetheless he concluded that undertaking such a program would not “either positively or negatively influence Mr Fleming’s capacity for employment”. He later reported that he did not consider there was likely to be “any significant improvement” in Mr Fleming’s opportunity to be employed after completing such a program.
123. Whilst not strictly in the nature of a “written assessment given under s36(8)”, the evidence of Mr Fleming was that he wanted to undertake rehabilitation by way of completing a psychology course to improve and correct his admitted behavioural problems because he thought his behavioural condition was unpleasant and “possibly dangerous”. He thought that studying was therapeutic and referred to his study of kinesiology which caused his “brain to work better” and permitted him to gradually reduce and eventually eliminate consumption of prescribed medication. He said that study for that program helped him “to become normal” nonetheless there were a number of “conditions” that Mr Fleming placed upon himself in returning to work namely that he would seek employment with the Commonwealth in order to preserve his superannuation entitlements and he felt that he would not be able to work with teenagers. He acknowledged that he remained vulnerable to provocation but said that his vulnerability was much less than it had been. I accept that the applicant’s emotional health has improved over the years and probably since 2000 when the opinions of Ms Avgeropoulos and the first report of Dr Large was prepared. He then reported that the applicant had unrealistic expectations of achieving “normality” but did acknowledge that undertaking the course would help him to have a better understanding of his illness. Dr Large also reported in 2000 that the applicant would probably be stressed if he was subjected to arbitrary authority, that it would be preferable for him to work in a small team or on his own and whilst he could probably cope with undertaking work involving “busy part time hours” Dr Large thought that employment with Centrelink would be stressful.
124. On review of the assessments and of the evidence of Mr Fleming there are two significant themes. The first is the expressed wish by Mr Fleming to undertake a course in psychology because of his belief that it would improve his emotional health and give him greater insight into the conditions which have affected him for many years. These expressions of his preparedness and preference to undertake the course of rehabilitation appears to be a substitute for or an adjunct to the treatment from Dr Large who has been attending Mr Fleming for more than 20 years. I would be satisfied that rehabilitation does include treatment of an illness or injury (refer Franks v Secretary, Department of Family and Community Services [2002] FCAFC 436) however the focus of rehabilitation in the 1988 Act is to return an employee to the workforce. Mr Fleming is to be applauded for his preparedness to investigate and learn skills which would improve his interpersonal conflicts and achieve “normality” as he has expressed. Whilst Dr Large reported in 2000 that the applicant probably had unrealistic expectations of achieving those ideals I would have thought on balance that the applicant should enter into a process of therapy or analysis by appropriately qualified persons which would more than likely achieve the objectives he believes could be satisfied by undertaking rehabilitation in the form of a tertiary course in psychology. This would be consistent with the opinion of Dr Cook and, without expressing any concluded view, it may amount to treatment which is “reasonable” within the meaning of s16 of the Act. That Mr Fleming stated that his behavioural illness was “possibly dangerous” and his primary forms by rehabilitation was to treat his illness (refer paragraph 38 earlier) I think reinforces the views expressed above. Mr Fleming remains vulnerable to outbursts of anger and, as may be seen by the episode at McDonalds, there appears to be some racial intolerance. These features of his behaviour require appropriate therapy and would be inappropriate behaviour of a psychologist, in training or practice. The potential of a form of therapy alternative to psychiatric treatment was suggested by Dr Large, in a report of 26 September 2000 (T49, p106). The applicant’s belief that undertaking a course in “alternate health” would “assist (his) health” was expressed by him in a letter to Comcare on 29 September 2000 (T50, p107).
125. The other significant issue which emerges from the assessments is the lack of enthusiasm on the part of Drs Large, Serry and Cook together with Professor Anderson and Ms Avgeropoulos. All have acknowledged the applicant’s intellect and the probability that he would manage study. Some have been more encouraging than others with respect to the applicant’s ability to cope with study and meeting deadlines. Some have expressed pessimism that the applicant’s personality would not cope with the stresses of study and feedback from supervisors and concern was also expressed that the applicant would suffer stress from having to meet deadlines of submitting work for assessment. Concern was expressed by some persons as to the suitability of the applicant being engaged in employment with Centrelink, indeed Professor Anderson thought that the applicant was naïve in focussing attention towards the Centrelink employment only. Comments were made that the applicant – assuming that he graduates – would present to an employer without any work skills or background in the practice of psychology and in those circumstances it was thought that employment would be unlikely.
whether any reduction in the future liability to pay compensation if the program is undertaken
126. Mr Fleming said that Comcare would be relieved from having to pay him weekly compensation in the event that he qualified for employment. This is because he would then be earning a wage and would no longer have an entitlement to weekly compensation. At present he receives approximately $100 per week in compensation. Other moneys are received from the Superannuation Commissioner because Mr Fleming has been assessed as TPI. Reduction in future liability is dependent upon the applicant obtaining employment. Obtaining employment is dependent upon the applicant graduating from his psychology course. Employment is also dependent upon the applicant satisfying an employer that employment should be offered to him. On balance I think that it is unlikely that even if the applicant were to undertake the course in psychology and in the event that he graduated that he would obtain employment.
127. For the reasons given earlier, unless employment is obtained the future liability of Comcare to pay compensation will not be reduced. Again it must be stated that liability to pay compensation will not be reduced simply because the proposed program is undertaken. That the applicant may graduate as a psychologist does not necessarily permit a conclusion that he has had his capacity for employment restored. I would be pessimistic that Mr Fleming would obtain employment in the event of graduation. He would then be in his early 60’s, without practice skills or experience and would have been a compensation recipient for more than 30 years. I would hope that a potential employer would not discriminate against Mr Fleming, however in my experience, having heard many compensation claims over the years issued by injured workers, confirms that there is a reluctance – bordering perhaps on discrimination – against employing persons who have been in receipt of compensation payments. The applicant’s age will also, in all probability, present difficulties in him obtaining employment no less than for the reasons expressed by Professor Anderson that employers could have no confidence – because of the person’s age – that the person would be retained. Other than the advertisement from Centrelink and the inferences Mr Fleming submitted should be drawn from it, no potential employer of Mr Fleming was identified.
128. In concluding this part I note that the applicant has referred to the reduction in the liability of the Superannuation Commissioner to pay pension to him in the event that he obtained salaried employment upon graduation and the benefit to the Australian community by him paying income tax from a wage that he would earn. These considerations are not relevant under this part.
costs of the program
129. A number of different estimates of costs were received in evidence and are to be found within the reports lodged. It would appear that the fees per annum in an under graduate program would commence at approximately $4000 per annum and progressively increase. Fees post graduation would be considerably greater. (I should add at this stage that there is no compelling evidence which would suggest any merit in the applicant undertaking a Masters or Doctoral degree. There is nothing which points to completing such a degree as creating any benefit or improvement in the likelihood of a return to the workforce). The duration of an under graduate degree in psychology varies between institution but is in the range of between four and six years. Upon the yearly fees being $4000 per annum (as averaged between institutions) the liability of Comcare would be no less than $16,000 rising to $24,000. This also assumes that fees do not increase over the duration of the course. Additionally Comcare would be exposed to other fees associated with tertiary studies being levies, book fees and the like. Throughout the duration of the course the applicant would continue to be paid weekly compensation. It therefore follows that Comcare would continue to pay weekly compensation whilst the applicant remains a full time student and incur a greater financial liability than it presently has. In the absence of a reasonable prospect of the applicant graduating from the course and an equally reasonable prospect of the applicant obtaining employment I could not find that the expense to which Comcare would be exposed in meeting the tertiary fees is reasonable.
whether any improvement in the employee’s opportunity to be employed after completing the program
130. I have already indicated my views as to the likelihood of the applicant graduating and then obtaining employment. That said, it must be acknowledged that in the event that he did complete the course in psychology that his opportunities to be employed would be better than they are presently. That position is put only on the basis that he presently does not have a degree in psychology. Mr Fleming might satisfy a potential employer that being of mature age he demonstrates sufficient incentive and enthusiasm by undertaking full time study and graduating. On balance and for the reasons given above I think that is unlikely. The only evidence heard of potential employment was with Centrelink. That was most unsatisfactory because I was asked to draw inferences of employment potential, which was not supported by any other evidence. It is also doubtful that Mr Fleming could be engaged with Centrelink as either a research of experimental psychologist, as he would prefer. The job advertisement requires candidates to make “clinical assessments”, to have “excellent customer skills” to work in a “diverse team environment” and to have an “understanding of cultural change”. I cannot find that on the evidence in these proceedings that Mr Fleming could satisfy this criteria. Mr Fleming submitted that the employer’s obligations under s40 of the 1988 Act would improve the opportunity to find employment. This is so, but the employer’s obligations are directed to taking reasonable steps to provide suitable employment or assist in finding suitable employment (I presume with another employer). Section 40 does not mandate that employment be provided.
the likely psychological effect on the employee of not providing the program
131. In evidence Mr Fleming said that he had “no idea” how he would react in the event that he was unsuccessful in this review. In his written submissions Mr Fleming pointed to the comments expressed by Dr Serry who concluded that if he were not permitted to undertake the program he would be exposed as a vulnerable person to further stresses. In those circumstances Mr Fleming submitted that “substantial reasons for rehabilitation” existed. The respondent submitted that the applicant might react adversely, with consequential detriment to his health if he attempted the course. This was put on the basis of the stresses to which he would be exposed. If there is merit in this submission, it would follow that lesser detriment would be experienced by not undertaking the course. It is impossible to state how the applicant would react in the event that he does not succeed in this application. I would imagine that he would be disappointed, but with the improvements in his emotional health, particularly over the last three or four years, I would anticipate that he would have developed better coping mechanisms. This criteria is, however, one amongst many within s37(3).
the employee’s attitude to the program
132. I have expressed above the comments made by Mr Fleming in evidence with respect to him wishing to undertake the psychology course. I am satisfied that he would approach the course with enthusiasm, commitment and dedication. I would be confident that he would attempt to meet deadlines and I am also satisfied that he is of the belief that undertaking the course would assist him in resolving some interpersonal conflict and reduction in his vulnerability to anger and other outbursts. I think that he would have difficulty completing some of the course work and that he would be exposed to some stressors which would truly test his coping skills. But, at the risk of repetition, my firm view, upon reading the T-documents, hearing Mr Fleming and on review of the evidence, that the motive for undertaking the psychology course is misconceived. The primary objective appears to be treatment or therapy to assist Mr Fleming in coping with his illness. This is more likely to be achieved by appropriate medical treatment. Undertaking the course, for the purposes of learning coping skills or insight is, on the evidence of Dr Cook, an unrealistic expectation.
the relative merits of any alternative and appropriate rehabilitation program
133. For reasons given earlier I am of the view that it would be in the applicant’s interests to investigate – and perhaps undertake – a particular type of therapy or analysis which would assist him in achieving the goals that he understood could be achieved by undertaking a course in psychology. Of course this is a matter that he should discuss with Dr Large and these suggestions are put forward not in any way as a criticism of Dr Large but rather as an alternative to the treatment that has been undertaken for the last 20 years. Perhaps it is a feature of the success of the treatment of Dr Large that the applicant himself is seeking insight into his illness and is exploring opportunities to improve his mental health. Some support for this proposition is also to be found in the opinions of Dr Cook. However there is no evidence of any other alternative and appropriate rehabilitation program and in those circumstances I cannot express any other view upon the criteria within this sub-section.
134. On balance I am satisfied and for the reasons expressed above that the decision under review refusing the provision of a rehabilitation program being a course in psychology should be affirmed.
I certify that the 134 preceding paragraphs are a true copy of the reasons for the decision herein of:
Mr John Handley, Senior MemberSigned: Holly Weston
AssociateDates of Hearing 13 August 2003 and 30 October 2003
Date of Decision 29 September 2004
Solicitor for the Applicant Self Represented
Counsel for the Respondent Mr J Ferwerda
Solicitor for the Respondent Sparke Helmore
3
8
0