Fratar and John Holland Pty Ltd (Compensation)

[2022] AATA 2602

Fratar and John Holland Pty Ltd (Compensation) [2022] AATA 2602 (16 August 2022)

Division:GENERAL DIVISION

File Number:          2021/4038

Re:Mr Wayne Fratar

APPLICANT

And RESPONDENT

John Holland Pty Ltd

DECISION

Tribunal:Deputy President I R Hanger AM QC

Date:16 August 2022

Place:Brisbane

The decision is affirmed.

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Deputy President I R Hanger AM QC

Catchwords

COMPENSATION – right to compensation, except for medical treatment for a left eye injury, cataract and retinal tear and a secondary adjustment disorder with depressed mood were suspended – failure to undertake a rehabilitation program without reasonable excuse – decision affirmed

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)

Safety, Rehabilitation and Compensation Act 1988 (Cth)

REASONS FOR DECISION

Deputy President I R Hanger AM QC

16 August 2022

1. Mr Fratar (“Applicant”) seeks a review of the Respondent’s decision of 28 May 2021[1] affirming a determination[2] under section 37 (7) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“SRC Act or the Act”) that his right to compensation, except for medical treatment, and to institute or continue any proceeding in relation to compensation for a left eye injury, cataract and retinal tear and a secondary adjustment disorder with depressed mood were suspended.

   [1] Exhibit 1, S37, T Documents (‘T Documents’), T464, pages 1,417 – 1,423.

   [2] Ibid, T452, pages 1,395 – 1,400.

2. The Respondent correctly submits that before me there are two issues for consideration which are:

   (a)Whether the Applicant refused or failed to undertake a rehabilitation program for the purpose of section 37 (7) of the SRC Act

   (b)If so, whether that refusal or failure was “without reasonable excuse” for the purpose of section 37 (7) of the SRC Act.

3. At the outset of the proceedings, I asked the Applicant whether he accepted the first proposition that he had refused or failed to undertake a rehabilitation program. The answer was in the affirmative. At one point in the proceeding, he appeared to dispute this but then appeared again to concede it. There is absolutely no evidence supporting a contention that he did not refuse or fail to undertake a rehabilitation program. The issue is whether he did so without reasonable excuse.

   BACKGROUND

4. The background facts are as follows. The Applicant was born in 1972. In February 2009, while at work with the Respondent, he sustained an injury to the left eye. Liability for that was accepted under section 14 of the SRC Act. He also experienced the onset of a secondary psychological condition which was described as an “adjustment disorder with depressed mood”. Liability was accepted for that.[3]

   [3] Ibid, n 1, T98, pages 419 – 423.

5. When injured he was a labourer, leading hand, working on the Horizon Alliance Darra to Springfield Transport Corridor project. After his injury the Respondent arranged and met the expenses of his rehabilitation and treatment.

6. On 19 August 2020, an updated rehabilitation assessment was undertaken pursuant to the provisions of section 36 of the Act.

7. On the advice of Dr Jukka, the Respondent arranged for independent medical examinations with Dr Varghese, a psychiatrist, and Dr Hilton, an ophthalmic surgeon. The reports of each of those doctors was to the effect that the applicant had the capacity to undertake the proposed rehabilitation program. A copy of each report was provided to the Applicant,

   
   

   Dr Jukka, and the rehabilitation provider before the determined rehabilitation program commencement.

8. On 2 December 2020, the Applicant again saw Dr Jukka and the doctor recorded in her notes that the Applicant “… accepted result and willing to trial a return to work programme in 2021...”[4]

   [4]     Exhibit 2, Supplementary T Docs, ST1, page 2.

9. On 8 December 2020, the rehabilitation provider conducted a workplace assessment and concluded that a rehabilitation program could be accommodated.[5]

   [5]     Exhibit 1, T Documents, ST389, page 1,230.

10. On 27 January 2021, Dr Jukka noted that she had had a long discussion with the Applicant and, “He does not wmat (sic) to go to cairns (sic) to have rehab and feels he will not be able to drive”.[6]

    [6]     Ibid, n 2, ST1, page 2.

11. After a discussion on 23 March 2021, followed by an email on 24 March 2021, the Applicant was told that he should read the determination that had been made and the rehabilitation program proposed.[7]

    [7]     Ibid, n 5, T428, page 1,335.

12. On 24 March 2021, it was determined under section 37 (1) of the SRC Act that the Applicant should undertake a rehabilitation program commencing on 25 March 2021 and that the reasonable costs associated with participating in the program would be paid for under section 37 (4) of the SRC Act.[8]

    [8]     Ibid and T429, pages 1,136 – 1,344.

13. On 25 March 2021, the Applicant advised the rehabilitation consultant that he had received the determination email.[9] He claimed that his medical certificate said that he was unfit for work until 27 April 2021 and that he did not need to participate in the program until he received a “fit for capacity” certificate.[10] He said that he knew if he did not participate in the program that his payment might be affected. He refused to attend the site meeting.

    [9]     Ibid, n5, T433, pages 1,355 – 1,356.

    [10]    Ibid, page 1,355.

14. On 29 March 2021, he advised the rehabilitation consultant that he had an appointment with a psychiatrist for 13 of April 2021 to get a second opinion. He declined to attend a site meeting and advised that he would send through a request for reconsideration within 30 days. He did not provide a psychiatric report, but the evidence establishes that he did travel to Cairns to attend an appointment with Dr King who is a psychiatrist on 13 April 2021.[11]

    
    

    Dr King provided a report to the Applicant’s GP and that report did not address the Applicant’s capacity to undertake the rehabilitation program and did not conclude that the applicant had no capacity to undertake a rehabilitation program.[12]

    [11]    Exhibit 1, T Documents, T452, pages 1,395 - 1,400.

    [12]    Ibid.

15. On 1 April 2021, the Applicant advised the rehabilitation consultant[13] that he could not attend a telephone appointment because he had to go shopping.

    [13]    Exhibit 1, T Documents, T438, page 1,396.

16. On 8 April 2021, the Respondent wrote to the Applicant giving him an opportunity to explain his failure to undertake the rehabilitation plan[14] and on 22 of April 2021 the Applicant provided a response which set out his reasons for failing to participate in the rehabilitation program[15].

    [14]    Ibid, T443, pages 1,378 – 1,380.

    [15]    Exhibit 1, T Documents, T449, pages 1,390 – 1,392.

17. On 26th of April 2021, the suspension determination was issued.

18. On 28 April 2021, the Applicant requested a reconsideration[16] of the determination and gave his reasons.[17] The first was that he had been provided with a workers compensation medical certificate from Dr Jukka certifying incapacity for any type of work for the period

    
    

    27 April 2021 to 27 July 2021. He also asserted that the Respondent’s medical specialists who had certified that he was fit to attend the rehabilitation program were wrong and that he had been paid for a total permanent disability.

    [16]    Ibid, T459, pages 1,408 – 1,410.

    [17]    Exhibit 1, T Documents, T457, page 1,405.

19. The reviewable decision was affirmed. On 14 June 2021, the Applicant lodged the application to the Tribunal.

    CONSIDERATION and ISSUES

    The Certificate of Dr Jukka

20. I mentioned at the outset that the Applicant conceded that he had refused or failed to undertake the rehabilitation program and I am satisfied the evidence clearly established this. The real issue is whether or not his refusal was reasonable.

21. Dr Jukka is a general practitioner. The fact that she provided a medical certificate relating to his capacity to work cannot be taken to mean that he could not undertake a rehabilitation program. On 24 March 2021, the Respondent had advised the doctor that the rehabilitation program had been determined and provided to the doctor independent specialist reports. The doctor in her reply email did not suggest that the Applicant did not have the capacity to undertake the rehabilitation program.[18] On 24 February 2021,  Dr Jukka had been given an opportunity to comment on the rehabilitation program and said that she was unable to answer the questions asked.[19]

    [18]    Exhibit 1, T Document, T440, page 1,371.

    [19]    Ibid, T420, page 319.

22. The Respondent also submits that the medical certificates relied on by the Applicant seem to be issued on the applicants own self report.

23. That appears to be correct.

24. The Respondent also points to the fact that when Dr Jukka advised the Applicant of the independent reports in relation to his capacity on the 2 of December 2020, her medical notes record, “Wayne accepted result and willing to trial return to work programme in 2021”.  On that day she gave him a medical certificate,[20] which while certifying incapacity for work, ticked the box regarding an ability to undertake suitable duties.

    [20]    Exhibit 1, T Documents, T380, page 1,203.

25. On 27 January 2021, the Applicant attended Dr Jukka whose notes record, “He does not wmat (sic) to go to cairns (sic) to have rehab and feels he will not be able to drive” and “… he feels he cant (sic) do this rehab programme and uncertain of his mental health in doing part time work in cairns (sic)…”.[21] I  am satisfied that nothing Dr Jukka did justified the Applicant not undertaking the proposed rehabilitation.

    [21]    Ibid, n 6.

    Total and permanent disability contention

26. It is not an issue that many years ago the Applicant was paid permanent impairment compensation, but the medical evidence that is currently before the Tribunal is that he is not injured to the extent that he cannot undertake the rehabilitation proposed. Dr Jukka was not called to give evidence, and her records do not say that he is unfit to undertake the program proposed. Even if they did, I would pay more regard to the specialist reports dealt with below.

    Medical Evidence

27. Doctor Jukka is a treating GP. Her notes indicate that initially the Applicant indicated that he was prepared to undertake the rehabilitation program proposed and had told the doctor that. On 2nd December 2020, she issued medical certificates[22] which certified no capacity for work but ticked the approval box regarding suitable duties.

    [22]    Exhibit 1, T380, page 1,203.

28. On 27 January 2021, the Applicant had changed his mind. He told the doctor that he did not want to go to Cairns to have rehabilitation and had concerns he would not be able to drive. He also expressed concern about his own mental health. I note however that he was able to get to Cairns to attend a psychiatrist with a view to obtaining a second opinion as to his psychiatric state. He did not produce a report from that psychiatrist.

29. The Respondent obtained 2 expert medical reports in the area of the applicant’s disability -- one from Doctor Varghese, psychiatrist and one from Doctor Hilton, an ophthalmic surgeon. Each of those doctors concluded that the Applicant had the capacity to undertake the proposed rehabilitation program. Their reports[23] were provided to the Applicant.

    [23]    Dr Varghese medical reports - Ibid, T305, pages 955 – 970, T372, pages 1,180 – 1,192 and T416, pages 1,312 – 1,314 and Dr Hilton - T110, pages 452 – 458, T127, pages 500-502, T286, pages 889 – 899, T291, pages 909-910, T371, pages 1,173 – 1,179 and T424, pages 1,326 – 1,329.

30. Both experts were called to give evidence and were cross examined after a fashion by the Applicant. I accept their evidence completely.

31. The Applicant also gave evidence. He was highly unreliable, aggressive, rude, inconsistent and exaggerated greatly. The two medical specialists had themselves commented on the fact that he was prone to exaggeration. For example, he alleged that Dr Hilton held him in a headlock and was choking him. That was nonsense. He said Dr Varghese only spoke to him for 10 to 15 minutes. It was an hour. 

32. He said he has not only been in lockdown for 12 years but has been locked down to his bed in his bedroom. He was given an opportunity to modify that kind of statement but declined to do so but evidence showed he had been doing other things including lawnmowing and/or running a lawnmowing business employing five people. He also undertook work at a local service station.

33. Where his evidence conflicts with that of the other witnesses, I do not accept his truthfulness.

34. Given that the original injury was in 2009, there are other medical records which I have not discussed.[24] They do not relate to the proposed rehabilitation. The most relevant reports are the two to which I have referred, from specialists in his area of disability, which were specifically directed to his ability as distinct from his lack of enthusiasm to undertake the rehabilitation that was proposed.

    [24]    Referring to Dr Burke - T300, pages 922 – 931 & T303, pages 945 – 952, Dr Connelly – T206, pages 716 – 717 & T273, pages 854 – 855 and Dr Chalk – T134, pages 515 – 526.

35. I am satisfied that the evidence establishes that the Applicant failed or refused to undertake the rehabilitation program proposed pursuant to S37(7) of the Act and that he did so without reasonable excuse.

    DECISION

36. The decision is affirmed.

I certify that the preceding 36 (thirty - six) paragraphs are a true copy of the reasons for the decision herein of Deputy President R I Hanger AM QC

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Associate

Dated: 16 August 2022

Date of hearing:	12 July 2022
Date final submissions received:	9 June 2022
Applicant:	In person
Solicitors for the Respondent:	Mr Matthew Hawker (Sparke Helmore Lawyers)

ANNEXURE A – EXHIBIT REGISTER

Exhibit Number	Description of Exhibit	Party	Date of Document	Filing Date
1	S37 T Documents (T1 – T466, paged 1 – 1,432)	R	Various	21 Jul 2021
2	Supplementary T Docs (ST1 – ST 3, paged 1 – 9)	R	Various	31 Jan 2022
3	Respondent’s Statement of Facts, Issues and Contentions dated 31 January 2022 (paged 1- 8)	R	31 Jan 2022	31 Jan 2022
4	Applicant’s reply to Respondent’s Statement of Facts, Issues and Contentions dated 11 February 2022 (13 pages)	A	11 Feb 2022	11 Feb 2022
5	Statement of Mr Wayne Fratar dated 23 September 2021 (2 pages)	A	23 Sept 2021	23 Sept 2021
6	Statement of Mr Wayne Fratar – Concerns when reading Dr Vargheses report and photos dated 23 October 2021 ( 4 pages)	A	23 Oct 2021	23 Oct 2021
7	Applicant’s Further evidence - photo (1 page)	A	9 Jun 2022	9 Jun 2022