Fogarty and Comcare
[2007] AATA 2002
•30 November 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 2002
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2006/001
GENERAL ADMINISTRATIVE DIVISION ) Re LORRAINE FOGARTY Applicant
And
COMCARE
Respondent
DECISION
Tribunal Mr S. Webb, Member Date30 November 2007
PlaceCanberra
Decision The decision under review is set aside. ............signed..................................
Mr S. Webb, Member
CATCHWORDS
COMPENSATION - rehabilitation following compensable injury – rehabilitation program - graduated return to work program – determination to amend program – requirement to have regard to relevant factors – applicant’s attitude - deteriorating medical condition and relevant medical information not properly taken into account - decision set aside
Safety, Rehabilitation and Compensation Act 1988 ss 4, 36, 37, 38, 40, 41, 41A
Re Finch and Telstra Corporation Limited [1998] AATA 13130
McGuiness v Comcare [2007] FMCA 1486
Re Peek and Comcare [2007] AATA 1462
R v Toohey; Ex Parte Meneling Station Pty Ltd (1982) 158 CLR 327
Department of Defence v Fox (1997) 24 AAR 171
Comcare v Chang (1996) 24 AAR 120
REASONS FOR DECISION
30 November 2007 Mr S. Webb, Member 1. Lorraine Fogarty was injured in employment by the Cultural Facilities Corporation of the Australian Capital Territory. She claimed and was paid compensation.[1] She commenced a rehabilitation program that involved a graduated return to work approved by her treating doctors. In due course, the rehabilitation program and return to work plan were amended by the Corporation.[2] Mrs Fogarty was unhappy with the amendment and asked for the matter to be reconsidered by Comcare. The decision to amend the program was affirmed.[3] That reviewable decision is the subject of these proceedings.
[1] T3.
[2] T66.
[3] T81.
2. I note in passing that Comcare applied to have the matter dismissed, submitting that the application was frivolous or vexatious, as no practical effect could result. The amendment in question concerns a specific period in 2005. The Tribunal rejected Comcare’s application and accepted Mrs Fogarty’s submission that the amendment may have an on-going effect upon her health and rehabilitation.[4] Thus the matter proceeded.
[4] Lorraine Fogarty and Comcare [2007] AATA 1299.
the facts
3. The relevant facts follow. Mrs Fogarty suffered a mental injury in her employment by the Corporation. On 1 October 2003, she claimed rehabilitation and compensation.[5] This was accepted by Comcare on 30 October 2003, with a deemed injury date of 15 September 2003.[6] Mrs Fogarty was certified unfit for work for a 4 week period by Dr V. Joseph, her treating general practitioner.
[5] T3.
[6] T10.
4. I note in passing that no issue was taken, nor evidence tendered, concerning the status of the Corporation or its Chief Executive, or relevant employees, for the purposes of Part III Division 2 and 3 of the Act. I will proceed on the basis that the Chief Executive of the Corporation is a ‘rehabilitation authority’.[7]
[7] Note Safety Rehabilitation and Compensation Act 1988: s.4A, the meaning of ‘rehabilitation authority’, ‘Commonwealth authority’, and ‘entity’, at subs 4(1).
5. On 22 October 2003, Mrs Fogarty signed a Graduated Return to Work Plan.[8] I accept that the Plan was a rehabilitation program for the purposes of Part III Division 3 of the Act (see Re Finch and Telstra Corporation Limited [1998][9]). The approved rehabilitation provider was Donna Trevenor and Associates; the nominated contact being Ms Olivia Wilson, a psychologist. Ms Wilson provided an initial needs assessment report on 22 October 2003, setting out the history of Mrs Fogarty’s injury and other matters. It is noteworthy that Ms Wilson refers to the involvement of Dr Joseph, Mrs Fogarty’s treating general practitioner at the time. The Plan covered the period to 21 December 2003, and was also signed by Ms Wilson and Mr Damien Fox, Mrs Fogarty’s nominated case manager. The Plan was consistent with Dr Joseph’s medical certificate dated 23 October 2003.[10] Mrs Fogarty commenced the Plan at 3 days per week and upgraded to 4 days per week on or about 16 December 2003.[11] However, Mrs Fogarty encountered difficulties in the Plan to return to full hours in the Corporation.[12] On 9 February 2004, she was certified fit to work up to 3 days per week in suitable employment outside the Corporation.[13]
[8] T5.
[9] AATA 13130, at [200].
[10] T7.
[11] T12 and T14; T11 folio 31 refers.
[12] T11 refers.
[13] T15.
6. On 6 February 2004, the Plan was amended and extended to 31 May 2004.[14] Mrs Fogarty, Mr Fox and Ms Wilson signed the amended Plan. The amended Plan was consistent with medical certificates issued by Dr Joseph and Dr Rosie Yuille, general practitioner.[15]
[14] T24.
[15] T15; T16; and T17 refers.
7. On or about 8 March 2004, Mrs Fogarty commenced a graduated return to work placement at the Department of Health.[16] However, Mrs Fogarty complained of increased symptoms of stress and anxiety and did not return to full duties. On 30 April 2004, Dr Yuille certified that Mrs Fogarty was unfit for work.[17] On 1 September 2004, Mrs Fogarty, Mr Fox and Ms Wilson signed off on a new Graduated Return to Work Plan involving a placement at the ACT Assembly.[18] It appears that this Plan was approved by Dr Yuille.[19] Mrs Fogarty achieved full time hours but then she experienced increased symptoms of “emotional and physical stress”[20] and she was certified unfit for work on 3 December 2004,[21] and again on 10 February 2005,[22] and remained subject to medical restrictions.[23] This Plan was closed on 9 March 2005.[24]
[16] T22.
[17] T18.
[18] T30 and T31.
[19] T32 and T33.
[20] T40 folio 82.
[21] T34, T35.
[22] T38.
[23] See T36, T37 and T39.
[24] T48.
8. On 3 March 2005, a further Graduated Return to Work Plan was signed off by Mrs Fogarty, Ms Debbie Maher (case manager in place of Mr Fox) and Ms Wilson.[25] This Plan was amended by agreement, consistent with Dr Yuille’s medical certificate,[26] on 3 March 2005.[27] The Plan was further amended on 9 March 2005,[28] and amended again on 21 June 2005.[29] The expected end date of the Plan was 31 July 2005.[30] I note that Mrs Fogarty and Ms Wilson signed off on this amendment on 20 May 2005 following consultation with Dr Yuille.[31] Ms Wilson reported in April 2005 that Mrs Fogarty’s rehabilitation process “may take a further 6-12 months, and will not be enhanced by external pressure to hasten more quickly than the pace that Mrs Fogarty believes she can manage”.[32]
[25] T41.
[26] T46.
[27] T47.
[28] T45.
[29] T48 folio 107 (signed last by Debbie Maher on 21 June 2005).
[30] T47 folio 101.
[31] T48 folio 107; T49 refers.
[32] T49 folio 109.
9. On 20 June 2005, Dr Yuille certified that Mrs Fogarty was fit to continue modified duties for “10 hours per week when appropriate finance duties at an ASO 5 level are available”.[33] On 27 July 2005, Dr Yuille certified that Mrs Fogarty was unfit for work on 27 and 29 July 2005 and that she would be fit to continue modified duties for 10 hours per week from 1 to 12 August 2005.[34]
[33] T50.
[34] T51 and T52.
10. It appears that Mrs Fogarty commenced consulting Dr Catherine Schmidli, general practitioner, at about this time, as Dr Yuille was not available (Dr Schmidli and Dr Yuille were in the same practice). On 3 August 2005, Dr Schmidli certified that Mrs Fogarty was unfit to work from 3 to 15 August 2005.[35] On 10 August 2005, Mrs Fogarty attended a medical review with Dr Schmidli and Ms Jane Miles, case manager SRC Solutions.[36] Mrs Fogarty was unhappy with the outcome of this review. There is a further medical certificate from Dr Schmidli dated 12 August 2005.[37] However, the doctor has not certified Mrs Fogarty’s level of fitness for work at this time. On 15 August 2005, Dr Ross Bills, general practitioner, certified that Mrs Fogarty was presently unfit for work but would be fit to return to modified duties on 16 August 2005.[38]
[35] T53.
[36] T67 folio 139 refers.
[37] T55.
[38] T58.
11. On 17 August 2005, Mrs Fogarty formalised an application for leave from 27 September 2005 to 19 October 2005 to care for her daughter-in-law.[39] Mrs Fogarty had previously discussed her intentions to take carer leave with Ms Miles and was concerned that her leave application would not be approved unless she increased her hours of work.[40] It appears that Mrs Fogarty’s concerns arose as a result of a meeting with Ms Miles on or about 28 July 2005[41] (after which she was certified unfit for two weeks by Dr Schmidli). On 15 August 2005, Dr Bills reported that “I do not believe [Mrs Fogarty] should increase her hours [over 10 hours per week spread over 2 days] or duties. [Carer leave] should be granted…”.[42] On 18 August 2005, Ms Rachael McMahon, Mrs Fogarty’s treating psychologist, reported “I would be highly concerned for Mrs Fogarty’s psycho-social well-being should her carer’s leave be denied”.[43]
[39] T59; T75 refers.
[40] T60 refers.
[41] Exhibit A4.
[42] T57.
[43] T60 folio 123.
12. On 19 August 2005, Ms Miles informed Ms Susan Bell, Mrs Fogarty’s work placement supervisor, that “recreation/planned leave is generally not approved during the period of a graduated return to work/rehabilitation programme”, and discussed the prospect of Mrs Fogarty choosing to “make up work time during the week”[44]: “In [Mrs Fogarty’s] case she may chose [sic] to work on Monday and some time on Friday or Wednesday morning prior to surgery.”[45] Mrs Fogarty was scheduled to undergo a colonoscopy procedure on 1 September 2005, and was prospectively certified unfit from 31 August 2005 to 2 September 2005.[46] It appears to me that Ms Miles was concerned that “Based on the current work plan [Mrs Fogarty] will not have demonstrated a sustainable pattern of attendance for work duties prior to her requested leave at the end of September, even at the level of 10 hours per week”; and “While [Mrs Fogarty] reported the study component as challenging she continues to attend study regularly, has not sought leave from the study and is actively seeking to increase her study load prior to the September absence.”[47] On 26 August 2005, Ms Wilson reported that “Ms Miles reported to me that she was not prepared to approve the carer’s leave without assessing if it would hinder return to work progress toward return to work goals closer to the time”.[48] Ms Miles was not required to give evidence and was not examined on these matters.
[44] T63 folio 127.
[45] T63 folio 126.
[46] Exhibit A5, document LF24; T63 folios 126 and 127.
[47] T63 folio 126.
[48] T67 folio 139.
13. On 17 August 2005, Ms Miles provided Mrs Fogarty with draft amendments to her previously amended Graduated Return to Work Plan.[49] On 19 August 2005, Ms Fogarty responded to the draft amendments and suggested some changes.[50] Among other matters, Mrs Fogarty took exception to the inclusion of a requirement concerning medical certification: “Unless certified medically unfit attend and undertake tasks and duties associated with study and work trial, i.e. 6hpw Diploma of Gov Fin Mngmt. 10 hpw with host employer…”.[51] Ms Miles responded on the same day, accepting some but not all of Mrs Fogarty’s suggestions, pointing out that “Your rehabilitation plan is developed in line with medical certification which details your fitness to participate”.[52]
[49] Exhibit R2 refers.
[50] T61.
[51] T66 folio 136.
[52] T62 folio 125.
14. On 22 August 2005, Dr Bills referred Mrs Fogarty to Dr M. Matias, psychiatrist, for treatment, and certified that she was unfit for work until 29 August 2005.[53]
[53] Exhibit A2, LF L/3 p144.
15. On 25 August 2005, Mr John Wicks, Chief Financial Officer of the Corporation, determined to amend Mrs Fogarty’s amended Graduated Return to Work Plan.[54] Ms Wilson and Ms Bell signed the amendment, but Mrs Fogarty did not. She was unfit for work at the time. The terms of the amendment set out ‘Employee- Action’ and ‘Outcomes expected’ for the period 1 August 2005 to 23 September 2005.[55]
[54] T66 folio 137.
[55] T66 folio 136.
16. On 26 August 2005, Ms Wilson recommended that “The Return to Work Goal of undertaking a 12-week placement carrying out finance duties be amended until 23 September 2005. Mrs Fogarty is having difficulty attending work due to stress associated with what she perceives to be pressure from her new Case Manager, Jane Miles, where her carer’s leave has not yet been approved, and she is being asked to sign a Return to Work Plan where she can only be absent from work if she is certified unfit for work. Ms Fogarty is concerned that if she signs this she will be agreeing to give up her Carer’s Leave, or that she may be accused of non-compliance if she takes personal leave”.[56]
[56] T67 folio 141.
17. Mrs Fogarty was provided with a copy of the signed determination amending her Return to Work Plan on or about 1 September 2005.[57]
[57] T71 folio 145 refers.
18. On 31 August 2005, Dr May Matias, treating psychiatrist, certified that Mrs Fogarty was presently unfit for work until 22 September 2005.[58] On 5 September 2005, Dr Bills wrote “I do not believe that [Mrs Fogarty] is fit to return to work either, and would suggest that pending the psychiatrists review she should not commit to a return to work plan. As such signing any RTW agreement should be deferred”.[59]
[58] T68; also see report at Exhibit A5, document LF34.
[59] T69 folio 143.
consideration
19. The issue presently for determination is whether the amendment that was made to Mrs Fogarty’s rehabilitation program on 25 August 2005 was properly made and is reasonable.
20. Comcare says that the amendment was properly made. In Comcare’s submission, the amendment was consistent with the advice of Mrs Fogarty’s treating doctors and did not diminish her employment rights or entitlements in relation to leave pursuant to the Cultural Facilities Corporation Enterprise Bargaining Agreement then in force. Furthermore, Comcare says that the amended rehabilitation plan was subject to medical restrictions, including the event of Mrs Fogarty being certified unfit for work, as she was for a significant proportion of the period during which the amended rehabilitation plan was in force. This, in Comcare’s submission, was a reasonable provision. Comcare says that there is no issue concerning any failure to comply with the amended rehabilitation plan by Mrs Fogarty, and notes that the amended plan was completed in 2005, and no practical effect will flow if the matter is decided in Mrs Fogarty’s favour. Thus, Comcare asserts that the amended plan was reasonable and appropriate, and the decision under review should be affirmed.
21. As will appear, I do not agree.
22. Under the Safety, Rehabilitation and Compensation Act 1988, a ‘rehabilitation authority’ (defined at subs 4(1)) may make a determination that an injured employee should undertake a ‘rehabilitation program’ (defined at subs 4(1)) and may make arrangements for the provision of such a program by an ‘approved program provider’ (program provider approval is pursuant to Part III, Division 2). When making such a determination, the rehabilitation authority is required to have regard to certain matters that are set out at subs 37(3):
(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.
23. What is required is that the decision maker ‘shall have regard to’ each of the matters set out at subs 37(3), including any other relevant matter, when determining a rehabilitation program. Thus, evidence concerning such matters must be taken into account and given appropriate weight (McGuiness v Comcare [2007][60]). It is necessary to “give weight to them as a fundamental element” (Gibbs CJ in R v Toohey; Ex Parte Meneling Station Pty Ltd (1982)[61]). If the regard had to the particular matter is not adequate or sufficient, if it is merely nominal or token regard, then it is not consistent or compliant with the statutory obligation imposed upon a decision maker by subs 37(3) of the Act (Department of Defence v Fox (1997)[62]).
[60] FMCA 1486, at [86].
[61] 158 CLR 327, at 333.
[62] 24 AAR 171, at 176.
24. The present task, therefore, is to review Comcare’s decision pursuant to subs 38(4) of the Act, in reconsideration of the primary determination made pursuant to subs 37(1) of the Act. For that purpose, it is necessary to consider the evidence through a temporal frame in order to determine whether the statutory obligations on the primary decision maker were satisfied and whether the determination was properly made at the time (Comcare v Chang (1996)[63]).
[63] 24 AAR 120, at 125.
25. I note in passing that rehabilitation authorities are required to comply with guidelines issued by Comcare (subs 41(1)) and in certain circumstances may delegate powers under Part III Division 3. The relevant employer is required to take all reasonable steps to provide the injured employee with suitable employment, or to assist the employee to find such employment (s.40). Where an employee refuses or fails to undertake a rehabilitation program without a reasonable excuse, the employee’s rights under the Act may be suspended (subs 37(7)). Thus, it can be seen that the determination of a rehabilitation program in respect of an injured employee connotes a requirement for participation by the employee and, in the event of a failure to comply without a reasonable excuse, may lead to suspension of the employee’s compensation rights and entitlements under the Act.
26. Mrs Fogarty did not agree with the amendments to her Graduated Return to Work Plan on 25 August 2005. She took exception to the requirement that she comply with the amended plan unless certified medically unfit to do so. She perceived this requirement as “entrapment” that was intended to preclude her from taking leave to care for her daughter-in-law. Her views were plainly expressed to Ms Miles. I am satisfied that Mrs Fogarty’s views on the draft amendments were taken into account by Ms Miles and by Mr Wicks when the matter was determined. However, in order to properly consider Mrs Fogarty’s attitudes and to give them appropriate weight, it is necessary to have regard to other relevant matters, including those set out at subs 37(3)(a) to (g).
27. I accept that the desirability of assisting Mrs Fogarty to return to her full capacity in full employment was considered. This was a stated object of the Graduated Return to Work Plan. However, were other matters concerning the relative merits of other rehabilitation plans, or the likely employment opportunities for Mrs Fogarty that may result from the amended plan, its cost, or any reduction in the future liability to pay Mrs Fogarty compensation properly had regard to? I am reasonably satisfied that they were not.
28. It is possible, even likely that the draft amendments were discussed with Dr Schmidli at an early stage. On 12 August 2005, Dr Schmidli wrote to Ms Miles and said:
“You ask if I see scope for increase to 15 hours per week prior to 27 September. Certainly there is potential for this, but by no means certainty. The situation will need to be reviewed once [Mrs Fogarty] has been back 10 hours a week for 3 or 4 weeks and I think extra pressure of including 3 days per week in the plan at this stage is likely to be counterproductive.”[64]
[64] Applicant’s document LF22.
29. Subsequently, Mrs Fogarty obtained medical treatment from Dr Bills. Contrary to Mr Wicks’ assertions at T76 folio 153, there is scant evidence that Dr Bills’ views were sought or obtained in relation to the proposed amendments of the Plan. Nevertheless, there is evidence that Ms Miles wrote to Dr Bills on 18 August 2005[65] and sent him a copy of the amended Plan on 30 August 2005.[66] On 22 August 2005, Dr Bills expressed the opinion that the proposed amendments to Mrs Fogarty’s Return to Work Plan were the “principal precipitant” of Mrs Fogarty’s “deteriorating” mood and that the “pushing of the new case manager” was a factor.[67] I note that Dr Bills recommended deferring finalisation of the return to Work Plan amendments until after psychiatric review of Mrs Fogarty by Dr Matias on 31 August 2005. This recommendation was communicated in a short report dated 5 September 2005. Nevertheless, Dr Bills referred Mrs Fogarty to Dr Matias on 22 August 2005 and was plainly concerned about her deteriorating mood and psychological condition at that time.[68] Had Dr Bills been consulted about the proposed amendments to the Plan prior to 25 August 2005, his views could have been taken into account. As it happened they were not.
[65] Exhibit A5, document LF28.
[66] Exhibit A5, document LF30.
[67] Exhibit A5, document LF27, document LF33 refers.
[68] Exhibit A5, document LF 34, p2 refers.
30. The evidence reveals that Dr Bills’ certificate dated 15 August 2005 was provided to Ms Miles on 18 August 2005.[69] Subsequently on 22 August 2005, Dr Bills certified that Mrs Fogarty was unfit for work and referred her to a psychiatrist (Dr Saboisky and Dr Matias) for treatment. Ms Miles and Mr Wicks had regard to Certificates by Dr Yuille and Dr Schmidli concerning periods prior to 12 August 2005, and to Dr Bills’ certificate and report dated 15 August 2005. The proposed amendments concerning hours and duties were consistent with that material. However, that does not resolve the matter for Comcare. There is no evidence that Ms Miles or Mr Wicks had regard to Dr Bills’ medical certificate dated 22 August 2005.
[69] Exhibit A5, documents LF5 and LF28.
31. Two further elements of Mrs Fogarty’s case were not properly taken into account when the determination was made: Mrs Fogarty’s deteriorating psychological state at that time, and the potential effect on her health of the proposed amendments. This was at a time when her application for leave to be with her family during a difficult period was not resolved, and in Mrs Fogarty’s perception, was under threat. It is plain enough from the history of Mrs Fogarty’s case and from the medical evidence at the time, that Mrs Fogarty was susceptible to stress and anxiety, and as Ms Wilson recommended in April 2005, her rehabilitation “will not be enhanced by external pressure to hasten more quickly than the pace that Mrs Fogarty believes she can manage”.[70] Dr Bills and Ms McMahon clearly expressed concerns about the likely effect on Mrs Fogarty’s health of denying her application for carer’s leave. While the issue of Mrs Fogarty’s application for carer’s leave, and her discussions on this subject with Ms Miles, are in one view, a side issue that is not related to the determination in question, I am satisfied that the particular requirement in the determination that Mrs Fogarty participate in the Plan unless certified unfit provides a powerful nexus between the proposed amendments and her application for carer leave. It is a relevant matter to consider in relation to the amendment of her rehabilitation program.
[70] T49 folio 109.
32. Mrs Fogarty’s perception of the effect of such a requirement upon her employment rights and entitlements may not be good in law and may have been the product of an injured mind. Nevertheless, her perception and interpretation of the particular requirement must be viewed in the context of what actually occurred in the process leading to the amendment of her rehabilitation plan. As it appears to me, prior to 25 August 2005, Mrs Fogarty’s perception of the particular terms of the amendment, specifically that she participate in the program unless certified unfit, had a significant adverse effect on her fitness and her capacity to participate in the rehabilitation program from 3 August 2005 (Dr Bills and Ms McMahon). The likely effect on Mrs Fogarty’s psychological condition was clearly telegraphed by Dr Bills on 15 August 2005, and by Ms McMahon on 18 August 2005.
33. It was also apparent that Mrs Fogarty’s condition deteriorated after the 28 July 2005 meeting with Ms Miles, at which matters concerning leave and the rehabilitation program were discussed, to the extent that she was certified unfit for work from 3 to 15 August 2005 by Dr Schmidli, on 15 August 2005 by Dr Bills, from 22 to 29 August 2005 by Dr Bills, and from 31 August 2005 to 22 September 2005 by Dr Matias.
34. These are relevant matters to which the decision maker should have had regard pursuant to subs 37(3)(e), (g) and (h). I am not persuaded that proper regard was had to these matters. Having regard to the particular certificates of Dr Yuille, Dr Schmidli and Dr Bills, whereby Mrs Fogarty was certified fit to participate in the program, alone, is not sufficient. Regard must also be had to the certificates of Dr Schmidli and Dr Bills, whereby she was certified unfit. If these certificates were considered at all, and that is a matter of considerable doubt, then it appears to me that any such regard was merely cursory or token in nature and was not consistent with the statutory obligations on the decision maker.
35. I have not been taken to any evidence that the relative merits of alternatives to the proposed amendments were considered. Thus, it appears to me that no such alternatives were considered.
36. In Comcare’s submission, the proposed amendment was not intended to reduce Mrs Fogarty’s rights or entitlements under the Corporation Enterprise Bargaining Agreement. If that was so, it would have been a simple matter to remove the particular requirement concerning participation unless Mrs Fogarty was certified unfit and to proceed on the basis of the relevant provisions of the Agreement then in force, and in so doing, allay Mrs Fogarty’s perceptions of unfairness or entrapment in relation to her application for leave. These are alternatives to the rehabilitation program, the relative merits of which the decision maker should have taken into account and weighed up, but there is no evidence that he did.
37. Had these matters been considered and had Dr Bills been consulted in a timely manner about the proposed amendments, the statutory obligations on the decision maker may have been satisfied and Mr Wicks would have had the benefit of further and better information concerning any likely improvement in Mrs Fogarty’s prospects for employment after completing the program. Other issues concerning the cost of the program and any prospective reduction in the future liability to pay her compensation may then have been weighed up. As it happened, during the period of the amended program from 1 August 2005 to 23 September 2005, Mrs Fogarty was certified unfit with two brief exceptions: 1 to 2 August 2005 and 16 to 22 August 2005. On 25 August 2005, when the determination was made, Mrs Fogarty’s psychological condition was deteriorating. She was certified unfit at the time and she remained unfit to return to the program until December 2005.
38. There is little good purpose served arranging and providing a rehabilitation program for an injured employee, and incurring the costs involved, if the employee is not fit to undertake the program. Unfortunately, as it appears to me, that is what happened in this case. The likelihood of Mrs Fogarty participating in and completing the amended program with any prospect of a positive effect upon her future employment opportunities, as well as any reduction in the future liability to pay her compensation, were not properly had regard to. These matters should have been considered and (then) current medical evidence taken into account and given appropriate weight. Changes in Mrs Fogarty’s medical condition should have been taken into account. That is especially so as she had a history of susceptibility to stress and anxiety and suffered increased incapacity as a result in the course of what was plainly a protracted effort to rehabilitate her after her injury.
39. Thus, in conclusion, I am reasonably satisfied that the amendments to Mrs Fogarty’s rehabilitation program determined on 25 August 2005 were not properly made and the statutory obligation on the Corporation to have regard to the matters set out at subs 37(3) was not complied with. Thus, the decision under review is set aside. As the events in issue occurred in 2005, and matters have progressed substantially since that time, there is no substitute decision that can be made in place of the one set aside.
I certify that the 39 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member
Signed: ....signed.........................
Jane Gribble
AssociateDate of Hearing 8 November 2007
Date of Decision 30 November 2007
Representative for the Applicant Greg Fogarty and Lorraine Fogarty
Counsel for the Respondent Andrew Dillon
Solicitor for the Respondent Justina Novac/ Carolyn Scarr
Australian Government Solicitor
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