Grima and K & S Freighters Pty Ltd (Compensation)
[2023] AATA 769
•17 April 2023
Grima and K & S Freighters Pty Ltd (Compensation) [2023] AATA 769 (17 April 2023)
ReviewNumber: 2022/2714, 2022/2718
Division:GENERAL DIVISION
File Number(s): 2022/2714, 2022/2718
Re:Daniel Grima
APPLICANT
AndK & S Freighters Pty Ltd
RESPONDENT
DECISION
Tribunal:Dr Stewart Fenwick, Senior Member
Date:17 April 2023
Place:Melbourne
The decisions under review dated 15 February 2022 and 24 March 2022 are affirmed.
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Dr Stewart Fenwick, Senior Member
Catchwords
COMPENSATION – rehabilitation – whether failure to undertake program without reasonable excuse – consideration of meaning of undertake – decisions affirmed
Legislation
Administrative Appeals Tribunal Act 1975
Safety, Rehabilitation and Compensation Act 1988Cases
Ahmed Ismailjee and Australian Postal Corporation [1995] AATA 555
Australian Postal Corporation v Forgie [2003] FCAFC 223
Ripper and Australian Postal Corporation [2015] AATA 15REASONS FOR DECISION
Dr Stewart Fenwick, Senior Member
17 April 2023
BACKGROUND
Mr Grima lodged two applications for review of decisions related to his return to work following a collision in September 2020 in the course of his employment as a driver. His claim for compensation was accepted in November 2020, on the basis of the condition of Post-Traumatic Stress Disorder (PTSD), and the Applicant subsequently undertook several rehabilitation programs.
In November 2021, the Respondent determined that Mr Grima should undertake a further program and he duly commenced work under that program, subsequently taking leave in December 2021. Mr Grima’s leave was due to end on 7 February 2022, at which time approximately one week of this program remained to be completed.
Prior to his returning from leave, the Respondent issued another draft rehabilitation plan in late January 2022. Following this, and according to Mr Grima as a result of the nature of this plan, he declined to return to work due to a deterioration in his mental health. At this point Mr Grima formally sought reconsideration of the November program.
Both applications were lodged with the Tribunal on 30 March 2022. Application 2022/2714 is in respect of the Respondent’s determination, dated 15 February 2022, affirming the November program. Application 2022/2718 is in respect of the Respondent affirming a separate decision dated, 24 March 2022, in which Mr Grima’s rights to compensation were suspended pursuant to s 37(7) of the Safety, Rehabilitation and Compensation Act 1988 (the Act).
The Applicant lodged a Statement of Facts, Issues and Contentions (SFIC), a reply to written submissions of the Respondent (AR), and further written submissions (AFS). The Respondent lodged documents pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (T), an amended SFIC (RSFIC), and two sets of written submissions (RS and RFS, respectively). The parties lodged a joint hearing book (HB).
Several documents were tendered by the Applicant during evidence:
an email to Ms Mari from Mrs Grima dated 29 October 2021 (Exhibit A1); a general practitioner (GP) patient health summary (Exhibit A2); and, a letter to the Applicant from the Respondent dated 25 August 2021 (Exhibit A3). The Respondent tendered a bundle of email correspondence (Exhibit R1).The further submissions arose from a telephone directions hearing where I sought the views of the parties about the interpretation of s 37(7). Having considered both closing oral submissions and those contained in their written submissions, I determined it appropriate that further submissions be provided specifically upon the question of the meaning of ‘undertake’ in circumstances where Mr Grima had commenced but failed to complete the November rehabilitation program.
In addition to the evidence of Mr Grima, evidence was also given at the hearing by his treating psychiatrist, Dr Mohr; treating GP, Dr Adesanoye; and wife, Mrs Grima. The Respondent called Ms Eleanor Eshel, rehabilitation consultant; and Ms Sandra Mari, return to work coordinator.
LEGISLATION
The provision of rehabilitation programs in the Act is provided for in s 37. Pursuant to s 37(1) a rehabilitation authority (meaning in this case the Respondent employer) may determine that an employee ‘should undertake a rehabilitation program’. A range of factors that an authority shall have regard to is set out in s 37(3).
Pursuant to s 37(7) an employee’s rights to compensation under the Act are suspended where they ‘refuse or fail[s], without reasonable excuse, to undertake’ a rehabilitation program.
ISSUES
The primary issue for determination is whether Mr Grima’s failure to complete the November 2021 rehabilitation program amounts to a refusal without reasonable excuse to undertake that program.
Neither party made comprehensive written or oral submissions with respect to the issues arising in Application 2022/2714, and the matter was conducted solely on the above issue. However, I have made relevant findings with respect to the question of the suitability of the November 2021 program.
EVIDENCE
Mr Grima
I will summarise briefly from Mr Grima’s written statement (HB3):
(a)at the time of his injury in 2020, his usual driving run involved a return trip to a regional Victorian town from the Respondent’s Geelong depot ([10]);
(b)following the accident, he experienced a range of symptoms affecting his mood and temperament ([15]);
(c)the Respondent put together a number of rehabilitation programs and while he continued to experience symptoms, he also expressed to Ms Mari his wish to return to truck driving ([17]–[18]);
(d)the November 2021 plan, known as Suitable Duties Plan (SDP) 5.1, accommodated his need to avoid driving past the scene of the accident, and he tried to avoid driving longer distances in general due to related anxiety ([19]);
(e)
just before Christmas 2021, he spoke with Ms Mari about returning to driving work in a graduated manner after his return from annual leave on 7 February 2022
([20]–[21]);
(f)a week or two before returning from leave he received SDP 6, which involved him returning to independent driving in the form of his original regional run. This caused his mental state to deteriorate significantly at the prospect of returning at the pace and in the manner outlined ([23]); and
(g)he had travelled to Queensland by car as a passenger during the holidays as a travelling companion for a relative and this trip had caused a lot of anxiety ([25]).
In his evidence at the hearing Mr Grima could not recall exactly when in early February he saw either Dr Mohr or his GP. He was unable to answer questions about the development or processing of SDP 6. Mr Grima confirmed that he was informed in mid-2021 that the regional run had been ‘subbed out’, meaning a contractor was performing the duties, noting that this affected the level of his benefits.
Mr Grima stated that he and his wife both had a conversation with Ms Mari, which occurred in late 2021 (according to Mrs Grima’s statement (HB8)). The Applicant remembered Ms Mari saying that he could lose his benefits after 52 weeks.
In cross-examination, Mr Grima agreed that his work hours increased over the course of SDP 5.1 to nearly full-time, and that upon his return from leave he would have just one week of the program left. He agreed that the process of approving programs followed the pattern of a draft including recommendations from the Respondent based on medical evidence, with input from himself. When pressed, he could not remember specifically having discussions with the Respondent about earlier plans.
Mr Grima confirmed that his conversation with Ms Mari took place before Christmas 2021 but was unable to recall the context, or how the matters discussed came up. He could also not recall the circumstances leading to various notes made in late 2021 about his progress with programs, including about his desire to return to driving. He agreed that he discussed his return to driving with Dr Mohr, but was not certain when.
Mr Grima agreed that SDP 6 was provided in draft form by email on 28 January 2022. When asked why he did not raise his concerns about its reference to the regional run he stated that it was because he was shocked. He did not agree that SDP 6 was in draft form, but acknowledged that it required several signatures including his own and that of his medical team. Mr Grima did on not recall Dr Mohr certifying on 5 February 2022 that he was fit to return to his pre-leave program (HB1, 212).
When asked if he had obtained other advice about his return to work, Mr Grima stated that he had spoken to a union representative, in September or October 2021. At this time he was informed about the 52 weeks issue.
Mr Grima disagreed that he saw his GP on 7 February 2022 because he was unsatisfied with Dr Mohr’s prior certification of fitness. When asked why he had been able to consult lawyers but not contact his supervisor about SDP 6, Mr Grima said this was because he was ‘on edge’ and did not want to speak with them.
The dates of Mr Grima’s February consultations were clarified in re-examination: he saw Dr Mohr on 1 February; his lawyer on 3 February; and, his GP on 7 February. Mr Grima stated that Dr Mohr recommenced his medications which had previously ceased some time prior to his annual leave.
Mrs Grima
As noted above, Mrs Grima provided a written statement with respect to a conversation with Ms Mari about advice said to have been given about compensation entitlements. She specifically refutes ([2]) Ms Mari’s own statement (HB6) to the effect that such a conversation never took place.
Mrs Grima gave, at times, emotional evidence about the support she provided to the Applicant as a result of his mental health difficulties. Mrs Grima stated that she was present in the room when the Applicant spoke to Ms Mari about entitlements. Her husband reported to her that if he did not return to work the Respondent had the right to terminate him. Mrs Grima called back to confirm the contents of the conversation. Following this, Mrs Grima said the Applicant tracked down a union representative and spoke to him on
the subject.In cross-examination, Mrs Grima stated that programs were developed in consultation with the Applicant and his medical advisers. She confirmed her understanding that Ms Mari told her that the Applicant could be dismissed, and payments and medical benefits stopped.
Other witnesses
Dr Adesonaye stated that he always wanted Mr Grima to feel ready to return to work and not feel pressure. He had difficulty recalling a phone consultation with the Applicant on 5 February 2022. The witness also appeared to have limited recall of SDP 6 and of Dr Mohr’s recommendations of February 2022. In cross-examination, Dr Adesonaye accepted that he had limited recall of Mr Grima’s presentation in February 2022.
Dr Mohr explained in her evidence the prescription of medications to Mr Grima primarily with a view to moderate his sense of feeling overwhelmed. She stated the Applicant informed her that he had weaned himself off medication in late 2021 due to an aversion to taking it. Consulting her notes, she stated that Mr Grima reported being bored with his duties in late 2021 and was in a positive mood, and that he told her he was looking forward to his graduated return to driving.
Dr Mohr confirmed that the Applicant consulted her on 1 February 2022, and stated that at this time Mr Grima was in ‘extreme distress’. At this consultation she placated Mr Grima and contacted a solicitor on his behalf, as no one was representing him. Dr Mohr confirmed that nonetheless, Mr Grima was fit to return to his pre-leave duties but described him as a simple person who could become easily overwhelmed. Dr Mohr agreed that she made amendments to the plan for Mr Grima’s duties in the week 14 February, as notified to Ms Eshel on 5 February (HB17, 741). She confirmed that she next saw the Applicant on 9 February. Dr Mari was unable to make a specific comparison of Mr Grima’s state as between 1 and 9 February, noting only that he was ‘still distressed’.
In cross-examination, Dr Mohr acknowledged that Mr Grima’s earlier independent medical examination report recommended he not return to driving, subject to approval, prior to February or March 2022. She disagreed that the course of rehabilitation program development for Mr Grima followed the broad recommendation, stating he was not ready to return to driving. However, she accepted that SDP 6 was not more than a proposal and that her recommendations had previously been accepted. She also accepted that returning to complete SDP 5.1 was in the Applicant’s best interests.
In response to questions from myself, Dr Mohr stated: she was not aware of Mr Grima having expressed a desire to return to driving more quickly; and, a significant number of people will experience relapse within 6–8 weeks of ceasing medication, but thought the actions of the Respondent in this case was a compounding factor.
Ms Eshel provided a written statement (HB7) in which she states that:
(a)Mr Grima had expressed a desire to return to driving but required medical clearance to do so;
(b)the plan was for his first week after leave to be on alternative duties, followed by a graduated return to driving consistent with discussions with Mr Grima prior to leave; and
(c)SDP 6 was provided to Mr Grima and Dr Mohr for comment.
In her statement and oral evidence Ms Eshel stated she was not aware of any advice to Mr Grima about loss of benefits. However, Mr Grima was provided with standard documentation about participation in rehabilitation programs at the beginning of the process (HB19). She agreed that correspondence tendered (Exhibit R1) represented typical exchanges in the course of developing programs.
With respect to SDP 6, Ms Eshel stated that the rate of return to pre-injury duties was increased because Mr Grima wanted to attain this earlier than the previously recommended rate. She agreed this was reflected in correspondence from Ms Mari dated 26 November 2021 describing the rate was ‘driven by Daniel’ (Exhibit R1, 40–41). Ms Eshel confirmed that she prepared SDP 6 around 28 January for comment, and that she had not been aware of any changes to Mr Grima’s previous regional run.
In cross-examination, Ms Eshel confirmed that she is familiar with various pieces of compensation legislation but stated that she does not discuss compliance issues with employees. She confirmed that the advice of the independent medical examiner was important, and hence SDP 6 was contingent on the advice of Dr Mohr. She considered Mr Grima’s GP not to be particularly engaged with the process overall.
In her written statement Ms Mari states that:
(a)Mr Grima returned to work on SDP 4 on 15 November 2021 on administrative duties and the following day she had a conversation with Ms Eshel about the Applicant’s positive attitude and his suggestion to expedite the return to driving ([11]–[12]);
(b)his program was amended following discussions with him in late November 2021 and she saw him frequently at this time. He expressed to her his desire to ‘return to truck driving duties as soon as possible’, and they held a conversation about his return after leave ([15], [19], [22]);
(c)on 3 February 2022, Mr Grima’s solicitors corresponded indicating the Applicant had reconsidered his position with respect to driving duties, and Dr Mohr subsequently confirmed his fitness to complete SDP 5.1 ([27]–[30]);
(d)a medical certificate was then received on 7 February which, while referring to Dr Mohr’s opinion, identified incapacity for driving duties and also certifying no capacity for work ([32]); and
(e)she has never had a conversation with Mr Grima as to cessation of benefits after 52 weeks because this type of conversation is not her practice, the notions are inconsistent with the Act, and termination is not referred to in materials provided to participants in rehabilitation programs ([34]–[40]).
In her evidence, Ms Mari stated that she recalled a conversation with Mr Grima in which she may have referred to his obligations to comply with the terms of his rehabilitation programs, and may have said he could be suspended if he failed to comply, but did not raise a 52 week period. I understood her evidence to indicate that this conversation took place prior to the receipt of an email from Mrs Grima (Exhibit A1) which refers to a conversation with the union delegate. She also had a short conversation with her after speaking with Mr Grima as he had been upset and she wanted to know why and Ms Mari offered to send a draft notice of the Applicant’s rights. Ms Mari confirmed that Mrs Grima raised suspension with her at this time. She recalled another conversation in late November in which Mrs Grima stated that the Applicant was a ‘changed man’ after returning to work.
When asked how SDP 6 referred to the regional run, Ms Mari explained this was an error. She stated that she was unable to speak with Mr Grima despite trying to do so and she also attempted to arrange a meeting. Ms Mari stated that a show cause letter was then sent to the Applicant’s solicitor.
In cross-examination, Ms Mari confirmed that SDP 6 was developed from discussions with Mr Grima and Ms Eshel. She confirmed errors including the Applicant doing alternate driving in week two, and in the reference to the regional run. Ms Mari accepted that this error was not corrected before the draft was distributed. She stated that she was not aware of the significance Mr Grima apparently placed on aversion to long-distance driving.
SUBMISSIONS
It was submitted for Mr Grima that his failure the complete SDP 5.1 was the deterioration in his mental state following receipt of draft SDP 6. It was submitted that there was no reasonable basis to question the credibility of the Applicant or Mrs Grima. Despite Mr Grima being unable to answer questions on a number of occasions, he should be judged to be an honest and genuine witness.
It was contended that Dr Mohr’s evidence about Mr Grima’s fitness to complete SDP 5.1 should be taken at face value. Accordingly, the only inference to be arrived at is that there was a marked deterioration in the Applicant’s mental state before 7 February. The Tribunal should consider what was personal to the Applicant in respect of signs and symptoms, which were substantiated in medical examinations.
Mr Grima’s representative acknowledged that the matters of the regional run and the advice about 52 weeks played a role but no definitive finding was required. However, limited weight might be given to Mrs Grima’s evidence about her conversation with Ms Mari as this took place several months before the critical time. Ms Mari’s evidence about the error made in referring to the regional run was ‘damning’.
The Applicant’s written submissions (AR) stress the failure of Ms Mari to fulfill her responsibilities and that, given the Applicant’s character, his reaction to SDP 6 was reasonable. The further submissions (AFS) urge the Tribunal to follow the reasoning applied in the decision of Ripper and Australian Postal Corporation [2015] AATA 15 (Ripper), being that ‘undertake means more than to begin or to commence, but less than complete’ ([44]). They also recast the issue as being something of a jurisdictional question ([1]). The reasoning in Ripper is contrasted with that of the Tribunal in Ahmed Ismailjee and Australian Postal Corporation [1995] AATA 555 (Ismailjee), where it was found that ‘undertake’ has the ‘same meaning in this context as the word ‘perform’’ ([24]). The three-member panel determined that this interpretation would clearly promote the object of the Act.
The Respondent submitted that the terms of SDP 5.1 include the obligation to perform the program, and to engage with the Respondent employer about any difficulties anticipated or experienced. It was contended that the Tribunal can safely put aside any consideration of conversations between Mr Grima and Ms Mari or Ms Eshel. Those concerning obligations were remote in time to the failure to undertake, and it cannot be accepted that Ms Mari would have made the observations attributed to her.
It was contended the mistaken reference to the regional run was regrettable, but was an issue that could have been ‘remedied in minutes’, had he complied with his obligation to contact the Respondent. It was further contended that Mr Grima’s failure to do so was a matter of volition not incapacity, given his ability at the relevant time to engage medical and legal advice. In summary, his attitude was borne of anger and resentment about a matter that was not objectively reasonable.
It was submitted that the better evidence about Mr Grima’s capacity was the opinion of Dr Mohr on 1 February that the Applicant could and also ought to return to his duties. Moreover, there is no evidence that Ms Mari ever developed a particular view about the Applicant’s return to driving. The tempo of SDP 6 was indeed driven by Mr Grima, and the Respondent’s position was a reasonable attempt to mediate competing expectations. Further, programs are developed in an iterative manner, with consultation at each stage.
In the initial written submissions (RS) the Respondent contends that rehabilitation is an important part of the statutory context of the Act. Therefore, the ‘unusually robust’ sanctions provided for in s 37(7) underpin the clear intention that compliance was mandatory, not optional (RS [17]). It was further contended that no attack was mounted on the reasonableness of SDP 5.1 ([20]), and that the only evidence of Mr Grima’s state on 7 February 2022 was from the GP, which should be afforded no weight ([21]). The Applicant’s ‘visceral’ reaction to SDP 6 was, it was submitted, ‘perverse’ in the circumstances ([24]).
In the further submissions (RFS), it is acknowledged that ‘undertake’ is not defined in the Act ([9]), but were the word be construed so as to mean only to embark upon or commence, this would allow the intent of s 37(7) to be avoided ([15]). The submissions acknowledge no authority directly addressing circumstances similar to Mr Grima’s. However, there was authority of the Full Court of the Federal Court of Australia supporting the view that undertake is synonymous with ‘comply’ (Australian Postal Corporation v Forgie [2003] FCAFC 223 at [87]) ([27]).
With respect to Ripper, the submissions essentially contend that this decision should be distinguished because the Tribunal there found that 75% compliance with the hours required in a rehabilitation program was the best the Applicant could attain; and, it may
have been open to the Tribunal to find that the program in that instance was unsuitable ([27]–[31]). In summary, it is contended that there is no support in previous decisions for the view that ‘undertake’ may mean no more than to commence a program. Such a finding would deprive s 37(7) to address the mischief to which it is aimed ([32]–[33]). In any event, the analogy with Ripper is weak since in Mr Grima’s case, ‘he had wholly ceased performance of the program’ ([39]).CONSIDERATION
The question at the centre of this matter is whether Mr Grima had a reasonable excuse not to attend work on 7 February 2022 to complete the last element of his then existing rehabilitation program. It is necessary to address this issue with some care, since the essential claim is that Mr Grima suffered a deterioration in his mental health upon receiving draft SDP 6.
Unfortunately, the evidence as to the sequence of events in early February 2022 is not entirely clear, and Mr Grima himself did not provide particularly helpful evidence on these critical days. Equally, the Applicant’s case has to a significant extent, sought to construct an argument that there was some form of unreasonable conduct on the Respondent’s behalf that somehow excuse Mr Grima’s reaction. While the conduct of the Respondent’s representatives forms part of the evidentiary background, it is not, with respect, the true focus of the inquiry.
I agree with the Applicant’s contention that limited emphasis should be put on the narrative around conversations about Mr Grima’s entitlements ending after 52 weeks. This narrative does appear to have some relevance to the Applicant’s state of mind, but I consider the evidence that the Respondent was somehow implicated to be very weak indeed.
It is far more clear that there was an error in including the regional run in SDP 6. However, I accept the Respondent’s contentions that this was, from an administrative point of view, a relatively simple error to fix. Further, whatever Mr Grima’s personal competencies, the evidence demonstrates that all prior programs were developed in a consultative manner. Moreover, and more importantly, Mr Grima knew for many months that the regional run had been contracted out. In addition, the evidence strongly favours the view that Mr Grima had directly expressed a view that he was eager to return to driving. This was not understood by the Respondent as some supervening element of program development, but as a factor to consider, mediated by medical advice.
Turning to the events in early February, I consider it appropriate to place particular weight on the opinion of Dr Mohr, Mr Grima’s treating specialist, that he was fit to complete
SDP 5.1, or at least the duties as described for the week of 7 February 2022, and that it was in his interests to do so. It is also important to note that Dr Mohr came to this view despite observing Mr Grima to be distressed. There is no unequivocal evidence that he deteriorated further prior to seeing his GP and I consider the evidence of Dr Adesonaye to have been patchy and unsatisfactory. Equally, Dr Mohr was unable to substantiate in her evidence any further deterioration in Mr Grima’s situation. Furthermore, during this critical period, Mr Grima had demonstrated the capacity to engage legal advisers, which I consider demonstrates that he did not entirely lack the faculties or capacity to confront his concerns.I am grateful to the parties for the additional effort taken to consider in more detail the interpretation of s 37(7). While I do not necessarily see this as a jurisdictional point, it might be open to find in the Applicant’s favour should I follow the reasoning of Ripper. However, having considered the submissions, I prefer the interpretation advanced by the Respondent. Not only is the weight of previous decisions firmly behind an interpretation of ‘undertake’ that aligns with the sense of ‘committing to do something’, this interpretation is more consistent with the existence of the provisions concerning rehabilitation programs in the Act.
In all the circumstances, I am not satisfied that Mr Grima had a reasonable excuse to not return from annual leave on 7 February 2022, consistent with SDP 5.1. I accept that Mr Grima may well have experienced some psychological distress around this time, but I am persuaded that the preponderance of evidence is to the effect that he was fit to return and that his fears were either not reasonable, or were capable of being addressed in a manner other than that which occurred.
I noted above the limited attention afforded to the issue arising in matter 2022/2714. However for completeness, I find that the original determination that Mr Grima undertake SDP 5.1 was reasonable in all the circumstances. I make this finding in particular based
on the opinion of Dr Mohr in February 2022 that Mr Grima could, and should, undertake
this program.DECISION
For the reasons given above, the Tribunal affirms the decisions under review.
I certify that the preceding 56 (fifty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member Fenwick
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Associate
Dated: 17 April 2023
Date(s) of hearing: 12, 13 and 14 December 2022 Counsel for the Applicant: Joe Ferwerda Solicitors for the Applicant: Arnold Thomas & Becker Advocate for the Respondent: Michael Snell Solicitors for the Respondent: McInnes Wilson Lawyers
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