FRANK ROBERTS and COMCARE
[2009] AATA 329
•11 May 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 329
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/0263
) No 2007/2197
GENERAL ADMINISTRATIVE DIVISION ) Re FRANK ROBERTS Applicant
And
COMCARE
Respondent
DECISION
Tribunal Ms Robin Hunt, Senior Member
Dr Maxwell Thorpe, MemberDate11 May 2009
PlaceSydney
Decision The decisions under review are affirmed.
....................[Sgd]...................
Dr Maxwell Thorpe
Member
for self and Ms Robin Hunt, Senior Member
CATCHWORDS
COMPENSATION – Safety, Rehabilitation and Compensation Act – rehabilitation program – determination made that applicant should participate in a rehabilitation program – applicant failed to undertake rehabilitation program created – no failure by authority to consider applicant’s attitude – no reasonable excuse for refusing or failing to undertake rehabilitation program – decisions under review affirmed.
Safety, Rehabilitation and Compensation Act 1988 ss 4(1), 37(1), 37(3), 37(3)(f), 37(7), 38(2)
Australian Postal Corporation v Forgie (2003) 130 FCR 279
McGuinness v Comcare (2007) 214 FLR 56
Pascoe v Australian Postal Corporation (2004) 38 AAR 314
REASONS FOR DECISION
11 May 2009 Ms Robin Hunt, Senior Member
Dr Maxwell Thorpe, Memberintroduction
1. Frank Roberts was an employee of the Refugee Review Tribunal (‘RRT’), who sustained a mental injury in the course of his employment, on or about 10 May 2005. He remained at work, but was then determined medically unfit to continue. Comcare liability for post traumatic stress disorder (‘PTSD’) on 11 July 2005.
2. Mr Roberts has remained on compensation leave and in receipt of incapacity payments. Several return to work programs have been organised without success. The most recent return to work rehabilitation program, and the subject of this review, was organised for Mr Roberts’ return on 23 November 2006. Mr Roberts did not avail himself of the program and his benefits ceased on 8 December 2006 for failure to participate in a rehabilitation program, involving a graduated return to work. He is now seeking review of two decisions:
In respect of Application 2007/0263
The reviewable decision dated 30 January 2007 that affirmed a determination dated 8 December 2006 that the applicant had failed or refused, without reasonable excuse, to undertake a rehabilitation program and as a result, his rights to compensation under the Safety, Rehabilitation and Compensation Act 1988 (‘the SRC Act’) were suspended.
In respect of Application 2007/2197
The reviewable decision dated 19 May 2007 that affirmed a determination dated 20 November 2006 that the applicant should participate in a rehabilitation program commencing on 23 November 2006 in which he would return to work performing similar duties to his pre-injury duties in a new workplace.
3. The RRT is the relevant rehabilitation authority under subsection 4(1) of the SRC Act. Subsection 37(1) provides for a rehabilitation authority to make a determination that an injured employee should undertake a rehabilitation program. Subsection 37(3) provides that the rehabilitation authority must consider factors set out in the subsection, including paragraph (f), “the employee’s attitude to the program”. Subsection 37(7) provides that, 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 benefits are suspended until such time as the employee begins to undertake the program. Subsection 38(2) provides the employee with the right to seek reconsideration by Comcare of the determination made by the rehabilitation authority under section 37. Comcare reconsidered two determinations concerning Mr Roberts and Mr Roberts then applied to the tribunal for review of the Comcare decisions.
issues
In respect of Application 2007/0263
(i) Whether the rehabilitation authority, in determining the rehabilitation program for the applicant, considered factors set out in subsection 37(3) of the SRC Act, including the employee’s attitude to the program;
(ii) Whether the applicant had a reasonable excuse in refusing or failing to undertake the prescribed rehabilitation program pursuant to subsection 37(7) of the SRC Act;
(iii) Whether the applicant’s compensation was rightly suspended by virtue of his failure or refusal to undertake a rehabilitation program pursuant to subsections 37(7) and 37(8) of the SRC Act.
In respect of Application 2007/2197
(iv) Whether the applicant was capable of undertaking the rehabilitation program;
(v) Whether the rehabilitation program was appropriate having regard to the factors set out in subsection 37(3) of the SRC Act.
background events and evidence
4. Mr Roberts was born in 1955. He left school after year 5 and spent his working life in different occupations including library work, process work, sapphire miner, fruit picker, opal miner, sales co-ordinator, estimator, and, in 1998, he commenced work with the RRT.
5. On or about 10 May 2005, whilst at work as a hearing attendant at the RRT, he reported the following event:
As I entered hearing room 5, there was what sounded at the time like an explosion, and from the peripheral vision on my left side I saw what I thought was someone swinging something at my head. I moved to my right, dropping a glass of water (that I was holding), when I turned around I saw the ceiling panel next to the lintel had fallen off. Attached to it was a length of electrical cabling and several protruding metal screws.
6. Michael Pingon, his supervisor, described the incident as:
Outside public entrance to hearing room at time of incident – noted Frank Roberts exiting room hastily, very distressed and hyperventilating. Noted ceiling tile had fallen down with wires and screws exposed – with potential to cause serious injury.
7. In a statement dated 8 June 2005, Mr Roberts explained his problems had been caused by a number of incidents occurring over several years in the course of his work and that the incident on or about 10 May 2005 had pushed him over the edge. He continued at work after the incident but after two or three weeks found he was unable to cope and he was certified unfit for work by his local doctor, Dr Lahood. He has not returned to work since.
8. In a determination dated 11 July 2005, Comcare accepted liability for Mr Roberts’ condition of PTSD.
9. His treating psychiatrist, Dr Brian Burke, first consulted Mr Roberts on 7 June 2005. He considered Mr Roberts had PTSD and that his depressive symptoms warrant the diagnosis of co-morbid major depression. Because of the intense anxiety Mr Roberts experiences at the prospect of a return to work at the RRT, Dr Burke thought it was unlikely that he will ever be able to manage this.
10. Ms Julie Humble, Safety and Rehabilitation Co-ordinator for the RRT, engaged the services of rehabilitation providers in an effort to try to assist him back into the workforce, including in June 2005, from Helen Kindness of Balmain Rehabilitation Services. Balmain Rehabilitation Services was the initial provider for the period June to December 2005 but ceased being the provider at the end of 2005 because “Dr Burke continued to certify Mr Roberts as unfit”. Lifeworks Health Services (‘LHS’) then became the rehabilitation provider. Mr Roberts signed a LHS document on 12 December 2005 indicating that he agreed to participate in the return to work program which was to be devised by LHS in consultation with his doctor and employer. Ms Kylie Vineburg was the initial rehabilitation consultant and had frequent contact with Mr Roberts in the first half of 2006. He was certified as unfit for work during the first months of 2006 and the commencement of a return to work program was deferred at this time in the hope and expectation that his condition would improve.
11. Comcare arranged for Dr Inglis Howe Synnott, psychiatrist, to see Mr Roberts on 16 May 2006, to assist with the ongoing management of his condition(s) and, in particular, returning Mr Roberts to some form of suitable/reasonable employment. It was his opinion that the most significant factor that would prevent Mr Roberts returning to employment with the RRT was his lack of motivation to do so and his negative mindset regarding the prospect of returning to employment. However, Dr Synnott observed psychological symptoms may be exacerbated by returning to work at the RRT and he did not consider it was necessary to get him to work there.
12. Under cross-examination, Mr Roberts said “I can’t remember” when asked by the respondent’s counsel if he recalled Ms Humble visiting him at home around two months after he ceased work, on 13 July 2005, and discussing with him a return to work in a suitable capacity. Ms Humble recorded that she advised him that the RRT and Comcare had a responsibility to ensure everything was done to assist him in a return to work program, and that she spoke to him about the potential for Comcare to cease payments if he did not attempt a graduated return to work program. Ms Humble’s written statement made on 10 October 2007 indicates that she visited him at home more than once and she refers to a further visit on 8 March 2006 among others.
13. Ms Humble arranged for a further independent medical opinion by Dr Phillip Brown. Dr Brown reported on 28 July 2006 that the psychological condition was the result of his work and his employment was a significant contributing factor. Dr Brown further reported he had recovered from the PTSD apart from a conscious fear of returning to his place of employment and that he had also made a conscious decision that he did not want to risk this. Dr Brown recommended Mr Roberts should be placed under a return to work program over the next six months, commencing at half a day on two days a week and gradually upgraded.
14. Both Dr Synnott and Dr Brown were of the opinion that any refusal by Mr Roberts to not return to work was not related to the PTSD but rather, as put by Dr Synnott, his mindset.
15. Ms Humble told the tribunal that she and Ms Aisling O’Reilly visited Mr Roberts at his home again on 17 August 2006 and discussed with him a proposed return to work plan based on the opinion of Dr Brown. Based on Dr Brown’s assessment, Ms Humble made a determination that Mr Roberts was fit for a return to work program as of that date. The rehabilitation goal was for Mr Roberts to return to full-time employment in a similar role with a new employer. Mr Roberts was not agreeable to signing the plan prepared, and before agreeing to participate in the plan he said he would need to consult his treating doctor, Dr Burke. A work trial was programmed at Defence Plaza for 21 August 2006, in order to meet the supervisor and be given an induction into the position. Mr Roberts attended Defence Plaza on time on 21 August 2006, but refused to go into Defence Plaza for the arranged meeting because of anxiety, and left.
16. Ms Humble subsequently rang Mr Roberts and told him to attend a second meeting scheduled for 24 August 2006 or he would face suspension. In oral evidence, his understanding was that, if he did not attend the meeting, his benefits would be cut off and he would not have the money to pay for medications and he would not have the money to see the psychiatrist who was treating him. His evidence was that Ms Humble also promised over the phone that he would not have to go into Defence Plaza and that the whole meeting would take place in the coffee shop.
17. He attended the meeting and in fact proceeded from the coffee shop at Ms Humble’s request into Defence Plaza even though he felt terrible, because it was a Department of Defence building, with a high security check-in. Mr Roberts met with Mr Grahame Atkins (Mr Robert’s supervisor for the trial) inside Defence Plaza, on 24 August 2006, was provided with an induction, and agreed to commence work on Tuesday, 29 August 2006. A fit for suitable duties certificate was obtained from Dr Burke.
18. Mr Roberts attended for work on the first day, and Mr Atkins reported that it had gone well. However, Mr Roberts told us in evidence that, afterwards, in order to sleep that night, he required two bottles of wine and felt unable to attend the next rostered day, Thursday. He did not return to work on Thursday, because of the fear of going there. He then consulted Dr Burke and the return to work program was subsequently closed.
19. Mr Roberts’ reason for feeling unable to work at Defence Plaza was that he experienced the sensation that the ceiling was going to collapse on top of him and that having uniformed personnel close by reminded him of working at the RRT. His account was that it was fear which prevented him from going back to work.
20. Mr Roberts had discussed the return to work program with Dr Burke and in evidence said:
I wanted to be well enough to go back to work. I love work. I love the Tribunal.
He reported that Dr Burke had advised him a return to work was totally up to Mr Roberts, but not to put himself in any stress or any position that was dangerous for him.
21. Mr Roberts’ account of events surrounding the return to work programs was that Ms Humble was his rehabilitation provider from the time that he had gone off work and that he had spoken to her many times on the phone. She had prepared a return to work plan that he recognised but had not agreed to sign. He had been told by Ms Humble that she had arranged a meeting outside Defence Plaza on 21 August 2006. He attended that meeting but was unable to proceed to Defence Plaza because of severe anxiety. He said:
I felt faint, I felt sick. I was feeling faint with anxiety. I wasn’t – I was hyperventilating and not breathing properly. I didn’t refuse to go into the building. I was incapable of going into the building because of the condition.
22. Dr Brown re-examined Mr Roberts on 3 October 2006 and again signed him off as fit to enter a return to work program. He was given the choice of three jobs; one at the National Native Title Tribunal (‘NNTT’), one at the Taxation Department and another somewhere else. Mr Roberts discussed this with Dr Burke and said that Dr Burke asked him:
If I felt like attempting another return to work – if I felt up to it, attempting another return to work plan as he believed – he thought it might be helpful to me. He said it was the same thing – if I felt any pressure, if I felt a reoccurrence of any of the symptoms I had, not to go through with it. But if I thought it would be of benefit to me to try it, to attempt it.
23. Unsuccessful attempts were made to obtain work for Mr Roberts with the Department of Veterans’ Affairs and NNTT. Dr Brown in his assessment of 3 October 2006 wrote that Mr Roberts had capacity to undertake a graduated return to work program but with some restrictions:
Given the recent problem of his anxiety at the Department of Defense [sic] it should not include places where there are uniforms to remind him of the RRT or where the ceiling looks like that which collapsed at the RRT. However, in my opinion no matter what you provide he will find some aspect to complain about unless it fits his ideal. In my opinion this motivation and not any psychological condition is the barrier to his rehabilitation.
24. After unsuccessful attempts with the Department of Veterans’ Affairs and NNTT, Ms Humble secured a work trial at the Department of Defence Establishment, Lidcombe (Bureau Services) and a meeting was arranged for Thursday, 16 November 2006. On that date, Mr Roberts, Ms O’Reilly, Rod Childs (Supervisor, Department of Defence, Lidcombe) and Ms Humble met at the Department of Defence to discuss a graduated return to work program.
25. The rehabilitation progress report dated 8 December 2006 reported, at paragraph 3:
The work trial meeting occurred at Bureau Services, Lidcombe on the 16/11/06 with all parties present. Mr Child’s provided a tour of the office and advised what duties Mr Roberts would be completing. Following the meeting Mr Childs reported that he was happy to provide duties for Mr Roberts, however he noted that Mr Roberts did not appear enthusiastic to participate in the work trial. It was also noted that Mr Roberts showed no visible signs of anxiety throughout the meeting and Ms Humble provided him with an opportunity to state whether he felt the roofing was unsafe, to which he stated “no.” Mr Roberts was also advised that there was little likely contact with uniformed personnel on the base. He expressed some concern about the scanning machine.
26. Mr Roberts remembered attending the meeting, that he did not want to be at the meeting and that he felt anxious, extremely anxious – it was the same thing about the security gate. He was unable to remember if anyone showed him a return to work plan at the meeting. He said he needed to speak with his brother and Dr Burke before making any decisions. Ms Humble also recalled that when she asked Mr Roberts what he thought of the program, his response was that he would have to discuss it with Dr Burke and his brother.
27. LHS reported it was agreed that, should Mr Roberts decide to commence a work trial, he would begin the following Thursday, 23 November 2006 at 9 am. LHS also reported that a new Comcare return to work plan and a suitable duties plan was developed and forwarded to Dr Burke, to enable him to discuss this with Mr Roberts at his appointment the next day. When asked if he remembered being shown a return to work plan around that time, Mr Roberts was unable to provide an answer.
28. LHS liaised with Dr Burke the next day and recorded that Dr Burke was happy for Mr Roberts to attempt the work trial, however he felt that LHS and Ms Humble needed care in the way they were dealing with Mr Roberts’ feelings, and to explain things more thoroughly to him. Dr Burke also reported that he had advised Mr Roberts to contact his union and to proceed with legal involvement if necessary.
29. Ms Humble also recorded that at that meeting she and Ms O’Reilly talked in depth to Mr Roberts about the value of his attending the program and also what would happen if he failed to commence the program. The suspension process was explained quite clearly and that, if he did not attend and was not able to give a valid reason why, he was at risk of having all benefits suspended. Mr Roberts agreed he was warned of possible suspension.
30. On 20 November 2006, Ms O’Reilly spoke to Ms Humble and updated her as to the events of 17 November 2006, following her conversation with Dr Burke. Then, on 20 November, Ms Humble signed the determination, which was completed by Ms O’Reilly on 23 November 2006 and which bears the notation that Mr Roberts declined to sign on that same day, 23 November 2006.
31. Mr Roberts did not attend for work on Thursday, 23 November 2006. At 9.05 am “when Frank had not shown”, Ms Humble contacted him by phone and recorded that he was unable to provide an explanation why he had not attended for the work trial. Mr Roberts recounted in oral evidence that he did not sleep the previous night or slept very little, he got to sleep very late, took additional sleeping tablets and medication and actually was asleep in bed at home at the time the program was meant to commence on 23 November 2006 at 9 am.
32. When asked by the respondent’s counsel, Mr Roberts gave evidence that he had taken a sleeping pill and drunk some wine.
I suppose it was 3 o’clock, half past three. I then got up and had another sleeping pill I suppose it would have been 4 or 5 o’clock when I got to sleep, maybe later, I don’t know. I was a mess.
33. Ms O’Reilly, Mr Leembruggen and Ms Humble then went through a further return to work program and agreed to a next start date at 9 am on Friday, 24 November 2006. Ms Humble then visited Mr Roberts at his home and went through the return to work program with him. When asked if he wished to sign the documents, she recorded that he replied he did not think so. Ms Humble said she explained to Mr Roberts that she had signed the return to work program and as such she had made a determination saying he was fit to undertake a rehabilitation program. There was now an expectation that he would turn up to the Defence depot at Lidcombe at 9 am on Friday, 24 November 2006. If he did not show up he would receive a letter asking him to show why he had not attended and if the reasons were not seen as satisfactory there was a possibility that his compensation would be suspended. Mr Roberts’ response was that he would discuss it with Dr Burke.
34. Mr Roberts did not attend the work trial on 24 November 2006, and the reason he gave was lack of sleep, the effects of PTSD as well as depression. He consulted Dr Burke that day. Review of Dr Burke’s clinical notes of that day shows no reference to the return to work program. A medical certificate of the same date certified Mr Roberts fit for suitable duties for the period 25 November 2006 to 8 December 2006 for 4 hours a day, 3 days a week in a conflict free job. .
35. In her statement dated 10 October 2007, Ms Humble wrote, “I believe that Aisling and I made all reasonable efforts to look after Frank in regard to his rehabilitation over a long period of time. I believe that the RTWP offered to him was suitable in the circumstances and reasonable for him to participate in same, weighing up all the relevant factors.”
36. She reported it was fair to say that Mr Roberts’ overall attitude towards rehabilitation was generally negative and he appeared to be resigned to not returning to work at any level. He provided negligible feedback to efforts to assist him. She formed the view that Mr Roberts’ was not interested in returning to the workforce and seemed content to pass the time at home.
37. Comcare then commenced the process of suspending Mr Roberts’ benefits. On 8 December 2006, after Mr Roberts provided no reasons for failing to undertake the rehabilitation program, his benefits were suspended.
38. Subsequently, when applying for reconsideration, Mr Roberts’ reasons provided for not participating were “fear of people in uniform and security which is a feature of the Department of Defence’s Auburn mail facility”.
39. In a letter from his representatives, dated 5 April 2007, Mr Roberts requested reconsideration of the determination dated 20 November 2006, on the grounds that it failed to give sufficient weight to the evidence of his treating practitioners.
medical evidence
40. Various medical opinions are before us. Mr Roberts has PTSD as an accepted disability. There is no dispute amongst any of the psychiatrists as to this diagnosis and that its genesis relates to his work situation at the RRT. There was also no dispute that the ceiling episode on or about 10 May 2005 on a background of work-related anxiety incidents over the previous five years was responsible. The relevant psychiatric issue is the current severity of the PTSD and the extent it does or does not impinge on his ability to undertake a return to work rehabilitation program.
41. Dr Burke, who originally saw Mr Roberts on 7 June 2005, remains his treating psychiatrist. He reported Mr Roberts’ symptoms of PTSD and major depression as having improved at times but relapsing when he commenced return to work program plans, which he attempted, and failed, on two occasions. Also, he relapsed under the added pressure of forceful encouragement to continue in these plans when, in his view, it became apparent he was not well enough to do so.
42. He believed Mr Roberts a sincere man and from Dr Burke’s viewpoint he considered Mr Roberts’ PTSD was more severe than judged by Dr Brown.
43. Dr Brown, psychiatrist, had certified Mr Roberts as fit to attempt a return to work program on two occasions. His opinion, on 3 October 2006, was that Mr Roberts developed a PTSD and then a major depressive episode; probably of the melancholic type. Further, he had recovered from the PTSD apart from a conditioned fear of returning to his place of employment and he had also made a conscious decision that he did not want to risk this. He has now recovered from his major depressive episode under psychotropic medication but was still reticent to return to other re-employment, as he was concerned about a recurrence of his psychological conditions.
44. As well, Dr Brown thought he should be placed under a return to work program for a progressive return over the next six months. If he did not accept such a plan or come to progress in it, Dr Brown said he would suspect that Mr Roberts was not motivated to return to work at this time and conclude the matter was no longer one for workers compensation.
45. Dr Synnott, on 26 May 2006, was of the opinion that Mr Roberts probably had PTSD in the first few months following the incident in May 2005, but as of May 2006 was in partial remission. At that time, he considered Mr Roberts was psychologically able to return to some kind of employment but had no motivation to do so. Also, it was his opinion that it was not the psychological condition that would prevent Mr Roberts returning to employment but his mindset and lack of motivation. Dr Synnott opined that the diagnosis of PTSD was not an automatic contra-indication to participating in employment. He acknowledged a particular aversion to returning to work with the RRT and any attempt to get him back there would be unsuccessful. In Dr Synnott’s opinion, this would not be due to PTSD, but his mindset and lack of motivation.
46. Dr Christopher Canaris, on 22 June 2007, noted Mr Roberts reported symptoms of PTSD including fear, fraught reliving of the traumatic incident, autonomic hyper-arousal and phobic avoidance behaviour. He also reported substantial depressive symptoms. Dr Canaris found the suggestion that his PTSD and major depressive disorder were substantially in remission somewhat difficult to understand given his self-report.
47. Dr Canaris suspected Mr Roberts had a mild version of Asperger’s syndrome, which is a form of very high functioning autism. If so, he observed that his Asperger’s has never impeded his capacity to work being in itself of marginal value in his case except as a label. He thought it relevant, however, insofar as it creates the impression in some examiners that his symptoms are not genuine and that he chooses not to work because of an “attitude problem”.
was the plan lawful?
48. A rehabilitation provider must, in determining a rehabilitation program, consider factors set out in subsection 37(3), including the employee’s attitude to the program: paragraph (f). Referring to McGuinness v Comcare (2007) 214 FLR 56 (‘McGuinness’), counsel for Mr Roberts questioned whether Mr Roberts’ attitude was taken into account before the return to work plan was made on 20 November 2006. He argued that, as Mr Roberts did not see the plan until 23 November 2006, it could not be lawful. And, if not lawful, suspension purportedly made under subsection 37(7) of the SRC Act, would have no effect.
49. The main thrust of the applicant’s submission was that there was no rehabilitation program in existence prior to 23 November 2006, because in making that decision or determination, on 20 November 2006, the rehabilitation authority did not have regard to a mandatory criterion, namely the employee’s attitude: as required by subparagraph 37(3)(f) of the SRC Act.
50. Mr Roberts contended that he had not seen the return to work plan until 23 November 2006, the day he was due to return to work. Not only was his attitude not taken into account, but he had not seen or agreed to the program at the time he was supposed to start and he had not signed any documentation relating to the return to work program.
51. The respondent contended that Mr Roberts did not have an excuse as he had been provided with ample opportunity to be fully advised of the program, had undertaken a site visit on 16 November 2006, had been shown the return to work program at the time of the site visit and then had the opportunity to discuss it with Dr Burke the next day on 17 November 2006.
52. Further evidence before us is that Dr Burke had a telephone discussion with Ms O’Reilly on 17 November 2006 and clarified two issues. Firstly, that the position was a temporary position and not a permanent position and, secondly, that Mr Roberts would not be required to use the scanning machine, so the issue concerning the scanning machine was removed. On balance, in view of the sequence of events, we are satisfied that on 20 November 2006, when Ms Humble signed her determination under subsection 37(1) of the SRC Act, she was entitled to do so, having first accorded with the requirements of the SRC Act.
53. Ms Humble recorded in her determination that Dr Brown in his reports dated 28 July 2006 and 3 October 2006 identified that Mr Roberts had capacity to undertake a rehabilitation program and had supplied appropriate guidelines for a graduated return to work program at 2 half days per week with a progressive return over six months. On 21 November 2006, Ms O’Reilly spoke with Mr Roberts by phone, recounted her conversation with Dr Burke, including the removal of the scanning machine, and again reminded him of the return to work plan.
54. The exact happenings at the site visit on 16 November 2006 concerning Mr Roberts’ return to work are not certain. The respondent’s submission was that it was agreed in Mr Roberts’ presence, that he would commence duties on 23 November 2006. Ms Humble set out her version of what occurred in her statement and gave oral evidence. She believed that Mr Roberts was calm during the visit and gave no indication of any concerns during the meeting and tour of the site. Ms Humble says that Mr Roberts was questioned many times to be sure the situation met with his approval. Standing outside the site, Ms Humble records that she asked Mr Roberts why he wanted to discuss the matter with his brother and he said he had been thinking of going away but when asked if he was going to resign, he replied that he had not thought about that.
55. At the meeting on 16 November 2006, Ms Humble noted that Mr Roberts claimed he was anxious and felt panicked at the time. Ms Humble disagreed and reported he was particularly calm. She made no reference to his sighting the return to work plan on that day. Counsel for the respondent was adamant Mr Roberts was shown the return to work plan but when asked by the tribunal, did he agree, Mr Roberts said “no”. Mr Roberts never volunteered anything other than “I’ll have to talk to Dr Burke and my brother.” This exchange suggests he did not agree with the plan at that point but was fully aware of the details of the plan.
56. Our interpretation of events is that subsequent to the site visit on 16 November 2006, the return to work plan was completed. The plan was subsequently forwarded to Dr Burke on 17 November 2006 for comment and modified to remove the scanner and clarify the job position. On 20 November 2006, Ms Humble as delegate of the rehabilitation authority determined under subsection 37(1) of the SRC Act that Mr Roberts should undertake the rehabilitation program. The plan was signed by Mr Leembruggen, the supervisor, on the morning of 23 November 2006. When Mr Roberts did not arrive for work on the morning of 23 November, Ms Humble then spoke to Mr Roberts by phone and travelled to his house, where Mr Roberts was shown the plan but refused to sign. The reasons advanced by Mr Roberts for failure to arrive for work on 23 November were the events of the previous evening (see paragraphs 31 and 32 above).
57. The start date was then advanced to 24 November 2006 and, as already noted, Mr Roberts did not attend that day for reasons given at paragraph 34 above. The tribunal has no reason to doubt that both Mr Roberts and Dr Burke were fully aware and cognisant of the program as of the start date, whether this is taken as 23 November or 24 November 2006.
58. In order to appreciate the realities of the situation, an understanding of prior events, and the roles of the various key players is required. Mr Roberts has been under the care of his regular psychiatrist Dr Burke since June 2005. Mr Roberts consulted Dr Burke regularly and, in addition to psychological therapy, relied on Dr Burke to advise on work activities and provide medical certificates.
59. Mr Roberts was very reliant on Dr Burke. When asked why he wanted to see Dr Burke, he replied:
Well, it’s ---he’s been extremely --- extremely helpful. Every time I’ve seen Dr Burke I come away feeling a bit better. He explains things to me. He explains the reasons – what’s happening to me, what’s caused it, what the effects are.
60. Relevant to Mr Roberts’ attitude, Dr Burke recorded on 21 May 2007:
I considered by the end of July [2006] it would be reasonable for him to try the return to work plan and explained to him that if he developed any potentially serious signs of PTSD he would not be forced to continue.
61. This seems a reasonable statement but also can be interpreted as including an escape clause whereby, if Mr Roberts was unable to proceed with the program, he would be able to cease the program.
62. Ms Humble has been involved in all return to work programs since June 2005. Relations between Dr Burke and the rehabilitation providers were strained. On 23 August 2006, in correspondence to Dr Lahood, Dr Burke wrote:
The rehabilitation provider from the RRT and an external rehabilitation provider whose aid they have enlisted (Lifeworks Health Services) are holding a gun at his head, so to speak, and I am doing my best to bring him the rest of the way to recovery while placating these well meaning helpers and dealing with the other reports which have given an opinion that he is well enough to commence a return to work program.
63. On 17 November 2006, on review of the return to work program, Dr Burke reported he was happy for Mr Roberts to attempt the work trial but that he felt that LHS and Ms Humble needed to change the way they were dealing with Mr Roberts’ feelings and explain things more thoroughly to him. Dr Burke reported that he had advised Mr Roberts to contact the union and to proceed with legal involvement if necessary. Dr Burke had provided an interim medical certificate certifying Mr Roberts as fit for the period 10 November 2006 to 25 November 2006, for the reason, as he explained to us in oral evidence, he did not want Mr Roberts to risk losing his benefits.
64. Ms Humble and Dr Burke had differing opinions concerning Mr Roberts’ work capacity and she had obtained independent medical opinion that differed from that of Dr Burke. The independent medical opinion allowed Ms Humble to proceed with the plan she had devised. This is not to say that Ms Humble did not make every reasonable effort to accommodate the concerns of Mr Roberts and Dr Burke.
65. In our opinion, in view of the ongoing efforts and conversations with Mr Roberts, reasonable attempts were made to find suitable employment for Mr Roberts away from the Defence establishment. The tribunal accepts the Department of Defence site at Lidcombe may not have been ideal, but we also accept that it was only a temporary position, and special provisions, including removal of the scanning machine were made. The question of uniformed personnel at the site was addressed in Ms Humble’s statement dated 10 October 2007, and she did not form the impression that this was a problem for Mr Roberts.
66. On the site visit on 16 November 2006, the evidence was that there was some discussion about army personnel being at the back of the facility and that Mr Roberts might see them if he went for a smoke. Working in a facility with high security was not raised as a concern according to the records. For example, Mr Roberts’ solicitors made a request for reconsideration regarding a subsection 37(3) matter on 5 April 2007:
We are instructed to request a reconsideration of the return to work plan and offer the following reasons in support:
(1) Failure to give sufficient weight to the medical evidence of our client’s treating practitioners.
67. The medical opinion was much divided. The background material and events leading up to 23 November 2006 highlight the difference of opinions, concerning Mr Roberts’ ability to return to work, between the treating psychiatrist and independent medical experts. This, no doubt, made it very difficult for the rehabilitation providers and confusing or threatening for Mr Roberts.
68. Mr Roberts had had a site visit, opportunity to discuss the return to work plan with Dr Burke and several modifications approved. The return to work program became a legal document on 20 November 2006 when signed by Ms Humble. Mr Roberts was certified medically fit to undertake the program by his treating psychiatrist, Dr Burke, and an independent medical examiner, Dr Brown.
69. We are satisfied that in making the determination, which Ms Humble signed on 20 November 2006, Ms Humble did have regard to the matters set out in subsection 37(3). In particular, counsel for Mr Roberts argued that his attitude to the program had not been taken into account as required by subparagraph 37(3)(f). We do not agree. The rehabilitation authority followed due process in making a determination that Mr Roberts should undertake a rehabilitation program pursuant to subsection 37(1) and having regard to necessary considerations. We find the rehabilitation authority did comply with the SRC Act. We accept that the plan dated 20 November 2006 was duly drawn up by Ms Humble and was lawful for the purposes of the return to work program.
was mr roberts capable of undertaking the program?
70. Independent medical examination is available to a rehabilitation provider, and the evidence of the treating doctor should not be elevated to the status of being determinative of the question arising for the tribunal under subsection 37(7) of the SRC Act. See McGuinness. We are satisfied that Mr Roberts was capable of undertaking the program.
71. We have no evidence that Mr Roberts or Dr Burke suggested any alternative or more appropriate program to which the authority failed to have regard. No other matter was put to us that the authority failed to consider under subsection 37(3) or otherwise. We are satisfied Mr Roberts was capable of undertaking the rehabilitation program and that the program was lawful in this respect as well.
was the program appropriate?
72. As we have already indicated, we consider the date and the manner in which the rehabilitation program was made as reasonable. Mr Roberts had participated in its creation and modification and discussed it with his psychiatrist and Ms Humble on many occasions. The fact he did not sight the final program until the morning of 23 November 2006 mitigates the certainty of the argument that Mr Roberts agreed to the program, but we consider the situation different to McGuinness, as here, Mr Roberts and his psychiatrist were parties to the program throughout its formation. Mr Roberts, subsequent to his failure to attend on 23 November 2006 was given the opportunity to commence the program the next day on 24 November but again did not avail himself of the opportunity. We are referring to “the program” as that prepared for commencement on 23 and then 24 November 2006, rather than any similar or substantially similar programs or plans discussed in the past.
73. If an employee’s attitude to the program is negative, it does not mean the program therefore fails, but simply the attitude is taken into account and appropriate weight given to the attitude. It is conceivable that an employee, supported by a treating doctor may be opposed to a program. But if having determined the attitude and given appropriate weight to the attitude, then the rehabilitation program, in our view, will have discharged the mandatory requirement of subparagraph 37(3)(f) of the SRC Act. See McGuinness.
74. In the present case, we consider appropriate weight has been given to Mr Roberts’ attitude and reasonable efforts made to take this into account in designing a plan. Dr Brown’s report of 3 October 2006 states:
Given the recent problem of his anxiety at the Department of Defense [sic] it should not include places where there are uniforms to remind him of the RRT or where the ceiling looks like that which collapsed at the RRT. However, in my opinion no matter what you provide he will find some aspect to complain about unless it fits his ideal. In my opinion this motivation and not any psychological condition is the barrier to his rehabilitation at this time.
75. Dr Synnott was of the opinion Mr Roberts was, in May 2006, psychologically able to return to employment but had no motivation to do so. See paragraph 45 above.
76. Dr Burke, did not reconcile from his position that Mr Roberts was still recovering from the effects of PTSD, provided a medical certificate stating he was fit to commence the program, and had discussed the program with Mr Roberts prior to the issue of the subsection 37(1) determination by the rehabilitation authority,
77. Ms Humble and LHS were enthusiastic and very diligent and attracted conflict with Dr Burke. They were forceful in their approach to this return to work plan and at the end of the day, relied on the medical certification of an independent medical examiner, rather than the treating psychiatrist, although Dr Burke remained as the liaison medical person between the rehabilitation providers and Mr Roberts.
78. We can see that Mr Roberts and Dr Burke took exception to the actions of Ms Humble and Ms O’Reilly as they adopted opposing views. It was also their perception that the rehabilitation providers were aggressive in their actions, a situation we consider best to be avoided for a successful rehabilitation process. In fairness to the rehabilitation providers, they were faced with a situation obstructive and contrary to their informed opinion concerning Mr Roberts’ ability to undertake a return to work program.
79. The tribunal considers the rehabilitation program provided for Mr Roberts duly attributed weight to Mr Roberts’ attitude and thus discharged a mandatory requirement of subsection 37(3). The program was not perfect in that Mr Roberts perceived the occasional security person in the distance and in Mr Roberts’ mind, Dr Burke had reservations, but the providers had gone out of their way to satisfy Mr Roberts’ objections. We come back to the conclusion provided by Dr Brown expressed in paragraphs 23 and 74 above, “in my opinion no matter what you provide he will find some aspect to complain about unless it fits his ideal. In my opinion this motivation and not any psychological condition is the barrier to his rehabilitation at this time”.
80. Dr Burke had in fact provided some support for Mr Roberts undertaking a return to work plan but with the escape caveat that if it does not work, not to continue. One could question why Mr Roberts would attempt the return to work plan if it included an escape clause. Dr Burke, no doubt, was doing what he thought was in Mr Roberts’ best interests.
81. Dr Canaris was alone in his diagnosis of Asperger’s as a reason for Mr Roberts’ attitude, and was also concerned that he was reliant on Mr Roberts’ self-report in making an assessment. He also reported that he relied upon Mr Roberts’ own statements concerning his symptoms of PTSD.
82. Whilst we respect the opinions of Dr Burke and Dr Canaris, we are persuaded by Dr Brown and Dr Synnott, that it was not the psychological barrier but motivation that caused Mr Roberts not to co-operate with the plan prepared for his return to work.
83. In coming to this opinion, we have given due consideration to all the medical evidence before us, and in particular that of Mr Roberts’ treating practitioners.
84. We are satisfied Mr Roberts was capable of undertaking the rehabilitation program and that the rehabilitation program was appropriately made in accordance with subsection 37(3) of the SRC Act.
is there a reasonable excuse for failing to undertake the program?
85. The next question for the tribunal is whether Mr Roberts had, without reasonable excuse, refused or failed to undertake the program.
86. Subsection 37(7) of the SRC Act only has effect if a determination is in force and a program provided. The threshold question before the tribunal is therefore whether Mr Roberts had a reasonable excuse for failing to undertake the program provided for him on 20 November 2006. As the Full Federal Court pointed out in Pascoe v Australian Postal Corporation (2004) 38 AAR 314, the appropriateness of a particular rehabilitation program pursuant to subsection 37(1) of the SRC Act is not a consideration when reviewing a decision by a rehabilitation authority to suspend entitlements to compensation under subsection 37(7) of the SRC Act. In any event, we have found the program was appropriate when reviewing the matter under subsection 37(3). If the employee is unhappy with the rehabilitation program determined pursuant to subsection 37(1) then the employee has the right to request review of the program as Mr Roberts did.
87. Counsel for Mr Roberts placed reliance on the events of the night of 22 November 2006 as a reasonable excuse. Mr Roberts gave oral evidence about self-medicating with alcohol and other medications. Counsel for Mr Roberts submitted he was physically incapable of undertaking the program given his psychological and medicated state. The reason Mr Roberts provided for the self-medication was his having to return to work. We have difficulty with Mr Roberts’ account of events of the evening of 22 November, including the fact that he reported he was asleep at the time he was supposed to be at work, although only a short time later he was able to sit at the dining room table in conference with Ms Humble. And that in subsequent correspondence to do with reasonable excuse there was no reference to self-medication. The self-medication remains unsubstantiated and self-reported.
88. The Full Federal Court in Australian Postal Corporation v Forgie (2003) 130 FCR 279 at 288, held that an assessment needs to be made at some point – by a person – as to a refusal or failure to undertake a rehabilitation program, and to the reasonableness or unreasonableness of that refusal or failure. Such a process requires that the person at least consider the circumstances surrounding the employee’s failure or refusal to undertake a rehabilitation program and to evaluate what is reasonable in the circumstances. This intellectual process involves matters of judgment and degree. Mr Roberts had a further opportunity, without penalty to commence the program on 24 November 2006 and again reported self-medication and an inability to attend, but was able to consult Dr Burke on that day and be certified as fit to undertake the rehabilitation program albeit with restrictions. We do not consider the reported events of the preceding evening as a reasonable excuse.
89. Correspondence from Mr Roberts’ solicitor dated 22 December 2006, and the request for reconsideration on 5 April 2007, relate to the question of whether sufficient weight had been given to the medical evidence to show that Mr Roberts was unable to take part in any plan involving work in a facility with high security and the presence of people in uniform.
90. We agree with the respondent’s submission that a reasonable excuse personal to Mr Roberts is necessary in order to explain the failure or refusal to undertake the program provided for him, and not the opinion of the tribunal as to the appropriateness of the program itself. The question of appropriateness does not relate to an excuse or refusal to undertake a rehabilitation program pursuant to subsection 37(7), but rather to the appropriateness of the rehabilitation program implemented under subsection 37(3).
91. We do not consider Mr Roberts had a reasonable excuse in refusing to undertake the prescribed rehabilitation program pursuant to subsection 37(7) of the SRC Act. It follows from this, and our findings that Mr Roberts was capable of undertaking the program and that the program was appropriate, that application 2007/2197 cannot succeed.
was compensation rightly suspended?
92. Having determined that Mr Roberts did not have a reasonable excuse to fail to undertake the rehabilitation program, it follows that his rights to compensation remain suspended.
93. We find that Mr Roberts is not entitled to compensation by virtue of his failure or refusal to undertake a rehabilitation program pursuant to subsection 37(7) of the SRC Act. It follows from this, and the above findings as to subsection 37(3), 37(7) and 37(8), that application 2007/0263 cannot succeed.
decision
94. The decisions under review are affirmed.
I certify that the 94 preceding paragraphs are a true copy of the reasons for the decision herein of Ms Robin Hunt, Senior Member and Dr Maxwell Thorpe, Member
Signed: ..........................[Sgd]...........................
Jennifer Wong, AssociateDates of Hearing 21-22 April, 5, 8, 12 September and
3 December 2008
Date of Decision 11 May 2009
Counsel for the Applicant Mr D Richards
Solicitor for the Applicant Slater & Gordon Lawyers
Counsel for the Respondent Mr M Best
Solicitor for the Respondent Sparke Helmore Lawyers
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