Galbraith and Comcare
[2006] AATA 762
•7 September 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 762
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2005/1501
GENERAL ADMINISTRATIVE DIVISION ) Re ALISON GALBRAITH Applicant
And
COMCARE
Respondent
DECISION
Tribunal MS N BELL, SENIOR MEMBER Date 7 September 2006
PlaceSydney
Decision The decision under review is affirmed. ..............................................
COMPENSATION – Back injury – Rehabilitation program – Failure to attend – Reasonable nature of Program - Relocation program –Failure to attend - Decision under review is affirmed
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Australian Postal Corporation v Forgie [2003] FCAFC 223
Lees v Comcare (1999) 56 ALD 84
REASONS FOR DECISION
MS N BELL, Senior Member 1. Ms Galbraith commenced working for the Department of Immigration and Multicultural Affairs (DIMA) in 1979. In 1992 she suffered a back injury while assisting at a citizenship ceremony. The subsequent surgery helped her but in 2003 she suffered a further injury to her back. Comcare accepted liability for both of these injuries and ultimately, in August 2005, required Ms Galbraith to participate in a rehabilitation program under the Safety, Rehabilitation and Compensation Act 1988 (the Act). This program required Ms Galbraith to attend work for 26 hours per week at the DIMA office in Canberra. The difficulty she had with the program was that she had moved to Sydney in March 2005.
2. Ms Galbraith did not participate in the rehabilitation program as required by Comcare and in October 2005 her weekly incapacity payments were ceased.
issues
3. Section 37 of the Act provides for rehabilitation programs to be provided to injured employees. Determinations, to provide rehabilitation programs and to penalise employees who fail to participate in those programs, may be made under section 37(1) and (7) respectively. A question in this application is which type of determination is properly before the Tribunal: a determination to provide a rehabilitation program or a determination to suspend rights, including payments. That is the first issue I must consider.
4. If the determination before me is one made under section 37(1), then I must have regard to the matters set out in section 37(3) to determine whether the decision to provide the rehabilitation program was the correct or preferable decision. If I decide that the determination before me is the determination to suspend Ms Galbraith's rights, then I must consider whether she had a reasonable excuse for failing to participate in the program.
5. In any event, Ms Galbraith’s move to Sydney, her reasons for doing so and its effect on the implementation of the rehabilitation plan are central to this application, no matter which of the determinations under section 37 the Tribunal has jurisdiction to review.
jurisdiction
6. Section 37(1) of the Act allows for an employer (as a rehabilitation authority) to require an employee who has suffered an injury to undertake a rehabilitation program. Subsection 37(3) sets out the matters to which an employer must have regard when making a determination under section 37(1). These include the cost of the program, the effect of the program on the employee and the employee’s attitude to the program. Section 37(7) provides for the suspension of an employee’s rights in relation to compensation or proceedings under the Act where an employee refuses or fails, without reasonable excuse, to undertake a rehabilitation program provided for the employee under section 37(1).
7. Comcare contended that the Tribunal has no jurisdiction to consider a determination made under section 37(7) but that it does have jurisdiction in relation to a determination and reviewable decision under section 37(1). Ms Galbraith contended the Tribunal has jurisdiction in relation to decisions made under both subsections but sought to have me concentrate primarily on the decision under section 37(7).
8. The decision of the Full Federal Court in Australian Postal Corporation v Forgie [2003] FCAFC 223 is authority for the proposition that the decision making process under section 37(7) involves a determination that can be the subject of a request for review. A reviewable decision can then be made and it will attract jurisdiction of the Tribunal.
9. Two determinations were made in this case. The first was made, on 11 August 2005, under section 37(1), that Ms Galbraith should undertake a rehabilitation program and that arrangements for the provision of a program should be made. Ms Galbraith requested a review of this determination and it was affirmed in a reviewable decision dated 28 September 2005. The 11 August determination mentioned the possibility of suspension if Ms Galbraith did not undertake the program. Her letter requesting review also mentioned suspension. However, no determination to suspend had yet been made.
10. When the determination, under section 37(7), to suspend Ms Galbraith’s rights was made, she lodged an application to the Tribunal for review of the reviewable decision of 28 September 2005. That reviewable decision was a decision under section 37(1) and was the only reviewable decision that had been made under section 37.
11. I note with concern that there is no evidence of Ms Galbraith having been given notice of the determination under section 37(7). Nor is there any evidence of her having been given advice of her right to request a review of the determination. But, even so, without a reconsidered determination, the decision in Lees v Comcare (1999) 56 ALD 84 applies and the Tribunal has no jurisdiction in relation to the determination made under section 37(7).
12. It is clear, however, that the Tribunal has jurisdiction to review the reconsideration decision made on 28 September 2005 to impose a rehabilitation program. Given the range of matters to be considered under section 37(3), the questions that concern Ms Gailbraith will receive attention: in particular, the appropriateness of a program that requires her to attend a workplace in Canberra when she now resides in Sydney.
the rehabilitation program
13. Section 37(3) requires a rehabilitation authority to have regard to a range of matters listed in the section. The matters relevant to Ms Galbraith’s application are:
(a) any written assessment given under subsection 36(8);
… (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.
14. As to the matters at a) and d) above, I do not understand there to be any dispute that the rehabilitation program properly takes these matters into account. In particular, I note the report of Dr Gibson, Occupational Physician of Health Services Australia dated 25 July 2005 that Ms Galbraith was fit to resume her graduated return to work commencing 26 hours per week and noting her general practitioner’s clearance for this.
15. As to the psychological effect of the plan (e) on Ms Galbraith, this is closely related to the question of Ms Galbraith’s attitude to the program (f) and revolves around the difficulty that arises from her residence in Sydney and the availability of the program in Canberra.
16. Ms Galbraith’s evidence was that she moved to Sydney from Canberra in March 2005 following her husband’s employment relocation to Sydney in January 2005. A document titled “Time line of Events” at page 546 of the T documents and prepared by Ms Galbraith has her husband being advised of his transfer in October 2004 and their house placed on the market that month. She said the reason she moved to Sydney was to be with her husband and described a number of difficulties that arose from their separation including having to maintain two households, her husband having to drive to Canberra each weekend to help her and the consequent decline of the quality of their relationship.
17. I am satisfied, and it is understandable, that Ms Galbraith’s preference is to live with her husband who works and resides in Sydney and so it follows that her preference is to live in Sydney. I am also satisfied this preference affects her attitude to the rehabilitation program which requires her to attend the workplace in Canberra.
18. Ms Galbraith said her husband assists her to do the shopping and the vacuuming because her back is “unstable” and she is concerned that it may be aggravated by these activities. He also refuels the cars and assists her to administer the insulin injections she began to have in 2003. She said that, during the period of their separation in 2005, she sometimes did not have her injection because she found it too difficult to administer on her own. No medical evidence of Ms Galbraith’s diabetes or treatment with insulin has been provided to the Tribunal.
19. Ms Galbraith also said she was keen to move to Sydney because the warmer climate would alleviate her back pain. She said this had been recommended to her by her General Practitioner, Dr Mackay. A letter from Dr Mackay dated 2 November 2004 and provided to Comcare said:
“Ms Galbraith has proposed a transfer to Sydney for a number of reasons.
I would strongly support transfer for a number of reasons.
1) On a medical basis – a warmer climate would in my opinion assist Ms Galbraith’s injury
- access to pain management clinic in Sydney (this had been proposed – attendance at RNS but this had to be delayed due to recent family illness) This program had been recommended over and above pain management clinics in ACT.
2) Ms Galbraith has personal reasons for transfer – multiple supports are available in Sydney and this would assist Ms Galbraith’s general health and therefore possibly improve injury status and possibly improve work hours long term.
3) Ms Galbraith’s mother is extremely ill and requires medical attention in Sydney – Nikki as part of caring team is required to be with her mother as much as possible.”
20. I note that this letter begins by saying that a transfer to Sydney was proposed by Ms Gabriel, rather than suggesting it was a recommendation made by Dr Mackay. I also note there is no medical basis given for the statement that a warmer climate will “assist Ms Galbraith’s injury”. Ms Galbraith suggested in her evidence to the Tribunal that she was advised by her doctor to move to Sydney for health reasons. Dr Mackay’s letter does not support that assertion but rather, offers support for Ms Galbraith’s own desire to move. I also note Ms Galbraith’s evidence that her mother now lives in Canberra.
21. Ms Galbraith also gave evidence of an attempt she made to drive to Canberra from Sydney to attend work on 4 November 2005. She said she became distressed and physically ill, had to stop a number of times and found she could not continue. She turned back and saw her doctor. Ms Galbraith’s evidence was that she left home in Sydney at 5.45 am to reach her workplace in Canberra between 9.00 and 10.00 am. She was cross examined on the sincerity of this attempt and maintained her assertion that the attempt was real.
22. As to the relative merits of an alternative rehabilitation program, Ms Kim Neilsen, formerly National Occupational Health and Safety Adviser for DIMA, gave evidence of advice she had given Ms Galbraith of the likely effects of moving to Sydney and thereby removing herself from the rehabilitation environment for personal reasons. She also said she had organised for Ms Galbraith some training in addressing selection criteria and in interview techniques to assist her to obtain a position with DIMA in Sydney. I note that Ms Galbraith was critical of this training and considered it to be of limited benefit to her. Ms Neilsen said she also made inquiries of the New South Wales office of the DIMA as to positions available for Ms Galbraith but there were no vacancies at that time. She also supported Ms Galbraith’s request for long service leave and on her last day of work advised her that if she did not obtain work in Sydney she would be expected to return to her position in Canberra.
23. Ms Neilsen said that in developing the rehabilitation plan for Ms Galbraith she took into account the rehabilitation assessment done by Dr Gibson but did not take into account the desire by Ms Galbraith to live in Sydney. She regarded this as a personal choice to remove herself from the rehabilitation environment. After the date of commencement of the plan on 17 October 2005, Ms Neilsen made a further inquiry about positions in Sydney for Ms Galbraith. In January 2006 she was advised that no positions were available but that Ms Galbraith was at liberty to apply for any position through a merit selection process.
24. Ms Rita Lee, Human Resource Manager for DIMA, gave evidence of an average of 2 to 3 requests per week by staff of DIMA for transfers to Sydney. She said it is general department policy that such transfers are done on a merit selection basis and this policy applies equally to all employees, injured or not, and those with rehabilitation needs. She said Ms Galbraith applied for an APS 5 position in Sydney in January 2005 but was not short listed, having been rejected on the merit of her written application. She said a further merit selection exercise at the APS 5 level in Sydney was held in September 2005 but Ms Galbraith did not apply and the same occurred in February 2006.
25. Ms Lee also gave evidence about home based work in the department. She said its availability is based on “operational ability to sustain” home based work and that guidelines are contained in the certified agreement. I note an email from Kate Pope, an officer of the Department, to Ms Galbraith dated 15 April 2005, referring to a proposal for working at home submitted by Ms Galbraith. She stated she does not support the proposal because it cannot be reconciled with a graduated return to work program, does not allow for a specified amount of time per week to be spent in the office and raises concerns about the security of files and personal information involved in freedom of information work.
26. In relation to “any other relevant matter” (37(h)), I note that Ms Galbraith now has a full time contract position with the Department of Veterans’ Affairs in Sydney, working some 36 hours per week. She explained her ability to work these hours on a sustained basis as being due to the warmer weather in Sydney. Ms Galbraith’s insulin dependence and the general issue of the warmer Sydney weather are discussed in detail above. I note again, the absence of medical evidence of these matters
27. The essential question is whether, taking into account all of these matters, the determination to require Ms Galbraith to undertake the rehabilitation program was the correct or preferable decision. The difficulty identified by Ms Galbraith with the program is its location in Canberra. The difficulty arises because Ms Galbraith left Canberra to move to Sydney in March 2005 for a range of reasons, the most important of which was to be with her husband who had transferred there in January 2005. The other reasons put forward by Ms Galbraith, including her need for assistance with administering her medication and with activities such as shopping and refuelling her car, are not unusual examples of reliance on a partner in a marriage. I regard these matters as features or aspects of her general, and understandable, preference to be with her husband.
28. Ms Galbraith also submitted that she had been advised to move to Sydney on medical grounds. It is clear from the letter from Dr Mackay of 2 November 2004 that the idea of the move did not originate with the Dr Mackay or in response to a medical need.
29. I am satisfied, therefore, that Ms Galbraith’s difficulty with the rehabilitation program and her attitude to it arise out of a personal preference to reside with her husband. I do not consider this to be an adequate reason to avoid a program or to characterise it as inappropriate but I note the efforts made by officers of DIMA to assist Ms Galbraith to find work at the DIMA office in Sydney in any event. I also note the consideration given by a DIMA officer to a work at home proposal put forward by Ms Galbraith, and the grounds on which it was rejected. I consider those grounds to be reasonable. In this way DIMA officers gave consideration to the relative merits of an alternative program. I agree that the alternatives raised, including work from home and transfer by merit selection to Sydney, were not workable or successful. I note, however, that Ms Galbraith only put herself forward for one merit selection process for a position in Sydney, when at least 2 more at her level were conducted.
30. If a person moved, for reasons of personal preference, away from their workplace so as to make attendance at work impractical, there would be no requirement on an employer to provide work at the new and preferred location. I consider that similarly there is no requirement on a rehabilitation provider to provide a rehabilitation program in a different location because of the personal preference of an injured employee. Even though there was no such requirement, officers of DIMA made attempts to find employment (and, consequently, a rehabilitation program) in Sydney and provided Ms Galbraith with some assistance in presenting herself for merit selection processes. She engaged in such a process only once.
31. I consider the rehabilitation program provided by DIMA was a reasonable and appropriate one in all the circumstances.
32. Even if I am wrong about the Tribunal’s jurisdiction to review a determination under section 37(7), the above matters would lead me to conclude that, in failing to undertake the rehabilitation program, Ms Galbraith had no reasonable excuse.
decision
33. The decision under review is affirmed.
I certify that the 33 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member.
Signed: ............ [Sanjiv Shah].................................
AssociateDates of Hearing 6 July 2006, 7 July 2006
Date of Decision 7 September 2006
Representative for the Applicant Mr D Bainbridge
Counsel for the Respondent Ms R Henderson
Solicitor for the Respondent Phillips Fox
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