Hogan and National Australia Bank Limited (Compensation) - [2019] AATA 780

Hogan and National Australia Bank Limited (Compensation) [2019] AATA 780 (1 May 2019)
Division:GENERAL DIVISION
File Numbers: 2016/5938 and 2018/1352
Re:Kylie Hogan
APPLICANT

AndNational Australia Bank Limited
RESPONDENT

DECISION
Tribunal:Deputy President Dr P McDermott RFD
Date:1 May 2019
Place:Brisbane

I affirm the decisions under review.
.........................[SGD].........................................
Deputy President Dr P McDermott RFD
CATCHWORDS
COMPENSATION – claim for a psychiatric injury as a result of the applicant’s employment with the respondent – liability accepted for the injury by the respondent – applicant’s failure to undertake a rehabilitation program – applicant’s compensation payments suspended – whether there was a reasonable excuse to not undertake a rehabilitation program – decisions under review affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth)
CASES
Nunez and Australian Postal Corporation [2014] AATA 125
Australian Postal Corporation and Nunez [2014] FCA 1095
Singh and Comcare [2012] AATA 652
Comcare and Singh [2012] FCA 136
Pascoe and Australian Postal Corporation [2004] FCAFC 4
SECONDARY MATERIALS
Guidelines for Rehabilitation Authorities 2012
Hamilton Rating Scale for Depression
REASONS FOR DECISION
Deputy President Dr P McDermott RFD
1 May 2019
INTRODUCTION

The applicant, Kylie Hogan, has worked with the respondent (“NAB”) since 1996. When she left paid employment with NAB, due to an alleged psychiatric illness, she had been an employee at NAB for nearly 20 years. Her most recent position was as a lending associate.
The applicant suffered an alleged psychiatric injury in February 2015, when she received an email from an external mortgage broker who she had interactions with as part of her lending associate role.
CLAIM HISTORY
On 17 March 2015 the applicant submitted a compensation claim with the respondent for “reactive severe major depression/anxiety”.[1] The cause of her injury was noted to be, “email from client/broker”. The claim form noted that the applicant had a “past history of reactive depression (2012) – settled without treatment”.
[1] Exhibit A, T-Documents, T11.
On 12 May 2015 the respondent accepted liability for the injury “adjustment disorder with anxiety and depressed mood” pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”).[2] The respondent was satisfied that the applicant’s compensable injury was sustained on the day she first sought treatment, being 24 February 2015. Liability for the applicant’s medical expenses was also accepted pursuant to s 16 of the Act.
[2] Exhibit A, T-Documents, T16.
On 27 July 2016 the applicant was provided with a rehabilitation program and return to work plan pursuant to s 37 of the Act.[3] These documents were sent through subsequent to the applicant being provided with a draft on 13 July 2016.[4] On 27 July 2016 the applicant responded by email and indicated that she would not be signing the return to work plan, nor would she be returning to work with NAB.[5] The applicant requested a reconsideration of the return to work plan. In this email the applicant referred to the medical certificate of Dr Morris dated 16 March 2016, where he stated that she would need to return to work in a different company other than NAB. The applicant also noted that she had had recent discussions with Samantha from NAB regarding her seeking part-time casual work through “host employment”, as she is “eager to enter to (sic) the workforce and Dr Morris has supported this”.
[3] Exhibit A, T-Documents, T27, p. 93.
[4] Exhibit A, T-Documents, T32, p. 104.
[5] Exhibit A, T-Documents, T27, pp. 92-93.
On 22 August 2016 the respondent affirmed their determination that the applicant was to undertake a rehabilitation program.[6] In this decision it was noted that Dr Morris had not provided any opinion as to why a return to work at NAB was not appropriate or reasonable, and he had provided no feedback on the return to work plan provided to him.
[6] Exhibit A, T-Documents, T29, p. 96.
Subsequent to this decision the applicant did not undertake the proposed rehabilitation program. On 7 September 2016 the respondent sent a letter to the applicant noting that she had refused or failed to undertake the program and reminding her of the possibility that her compensation payments could be suspended.[7]
[7] Exhibit A, T-Documents, T30.
On 18 September 2016 the applicant provided a written response to this letter which outlined the reasons why she would not be completing the rehabilitation program.[8]
[8] Exhibit B, Supplementary T-Documents, T4.
On 22 September 2016 the respondent determined that the applicant had no reasonable excuse for failing to undertake the program, so her compensation entitlements were suspended with immediate effect under s 37(7) of the Act.[9]
[9] Exhibit J, T-Documents for 2018/1352, T3.
On 20 October 2016 the applicant requested a reconsideration of the decision to suspend her compensation payments pursuant to s 62 of the Act.[10]
[10] Exhibit J, T-Documents for 2018/1352, T4.
On 3 November 2016 the applicant lodged an application for review with this Tribunal regarding the 22 August 2016 affirmation of the determination that the applicant was to undertake the proposed rehabilitation program.
On 9 March 2018 the respondent affirmed the original determination to suspend the applicant’s compensation payments.[11]
[11] Exhibit J, T-Documents for 2018/1352, T5.
On 13 March 2018 the applicant lodged a further application for review with this Tribunal regarding the 9 March 2018 decision to affirm the determination of 22 September 2016 that the applicant had no reasonable excuse for failing to undertake the rehabilitation program and suspending her compensation payments.
The hearing in these matters was held on 19 and 20 March 2018. At a telephone directions hearing on 12 April 2018 the parties consented to both applications being decided together.
LEGISLATIVE FRAMEWORK
Section 14 of the Act provides for the compensation of injuries where liability has been accepted for an injury suffered by an employee. It is not in dispute that the applicant was entitled to compensation under s 14 as at 12 May 2015. It is also not in dispute that the applicant was entitled to compensation for medical expenses under s 16 of the Act.
Section 37 of the Act provides the following with respect to the provision of rehabilitation programs:
Provision of rehabilitation programs
(1) A rehabilitation authority may make a determination that an employee who has suffered an injury resulting in an incapacity for work or an impairment should undertake a rehabilitation program.
(2) If a rehabilitation authority makes a determination under subsection (1), the authority may:
(a)provide a rehabilitation program for the employee itself; or
(b)make arrangements with an approved program provider for that provider to provide a rehabilitation program for the employee.
(7) 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 compensation under this Act, and to institute or continue any proceedings under this Act in relation to compensation, are suspended until the employee begins to undertake the program.
(7A) However, subsection (7) does not operate to suspend the employee's right to compensation for the cost of medical treatment that is payable under section 16.
(8) Where an employee's right to compensation is suspended under subsection (7), compensation is not payable in respect of the period of the suspension.
Section 41 of the Act provides that rehabilitation authority guidelines may be prepared in relation to the performance or exercise of their functions or powers by those authorities and that a rehabilitation authority must comply with any guidelines issued.
The Guidelines for Rehabilitation Authorities 2012 were developed in respondent to s 41 of the Act (s 4 of the Guidelines). Section 33.3 of the Guidelines provide that:
In considering the refusal, failure or obstruction the case manager should have regard to what constitutes ‘reasonable excuse’, including but not limited to:
(a) the medical inability or risk to the employee in undertaking the rehabilitation examination or program – supporting medical evidence would be required if medical reasons are an issue; or
(b) a critical and unforeseen incident;
And, that the employee’s stated belief that an examination or rehabilitation program is not required or not appropriate does not, on its own, constitute a reasonable excuse. An employee’s request for a reconsideration of a determination requiring attendance at an examination or to undertake a rehabilitation program, lodged prior to the refusal, failure or obstruction, may however be considered a reasonable excuse.
APPLICANT’S EVIDENCE
The applicant provided a statement in support of her application dated 14 June 2017.[12] In this statement the applicant confirmed that she had not worked in any paid employment since February 2015. She listed some other activities that she had undertaken in that time, including some voluntary work at her sons’ school in 2016, when she helped out at the tuckshop and uniform shop. She stated that as it was not intellectually stimulating she lost interest and she did not return. She also enrolled in a Diploma of Project Management in 2016, but she withdrew three weeks after enrolling and never began the course because she found it “overwhelming” just looking at the requirements of the course.
[12] Exhibit E.
The applicant stated that she was looking at becoming a self-employed finance broker, and to do this she was required to complete a refresher course in “anti-money laundering”. She completed this course online and it took her around 20 minutes. She stated that she did not find the course easy.
The applicant stated that there had been three return to work programs proposed by NAB which were rejected as they went against the instructions of her psychiatrist, Dr Morris, and after this she suggested a “host employment” to get her back into the workforce; this was refused by NAB.
In her statement the applicant stated that her current GP was Dr Paul Bryan. Dr Bryan had referred her to her treating psychiatrist, Dr Morris. She met with Dr Morris monthly until September 2015, at which point she states that Susan Magar from NAB adjusted the visits to fortnightly. The applicant’s visits with Dr Morris continued fortnightly until May 2016, when they went back to monthly visits. The applicant stated that she has not seen Dr Morris since September 2016, when her compensation payments ceased, as Dr Morris is no longer being reimbursed by NAB and she cannot afford his fees.
The applicant stated that she is currently taking Lexapro.
The applicant’s statement referred to several interactions she had with NAB employees and Konekt consultants, with Konekt being the company hired by NAB to facilitate the applicant’s return to work. The applicant met with Ms Christy Livingstone from Konekt on or about 3 June 2015. She later received a report from Ms Livingstone dated 16 June 2015,[13] which contains what the applicant referred to as an accurate summary of their discussion and her previous work duties. The applicant also had several telephone conversations with Ms Livingstone and kept her advised of her medical appointments and progress.
[13] Exhibit E, annexure KH-1.
The applicant stated that she had another meeting with Ms Livingstone in September 2015; Catherine Neumann, the applicant’s manager, and Susan Magar were also in attendance, and the applicant recalls that Samantha Gidley may have also been present. The applicant stated that the meeting “did not go well”. The applicant described how Ms Magar asked her “a lot of personal questions” regarding her treatment with Dr Morris. She found this to be “very confronting” and it “enraged and upset [her]”. The applicant admitted that she “lashed out” at Ms Magar during the meeting.
The applicant stated that in December 2015, Dr Morris certified her as fit to return to suitable duties in an alternative role in a part-time capacity, in a host employer other than NAB. It was suggested that the applicant could assist her husband by doing some data entry to ease her back into the workforce. The applicant stated that this idea was rejected by “NAB (i.e. Susan Magar)”, as it would represent a conflict of interest.
In early 2016 the applicant was contacted by another Konekt consultant, Danielle McGlone, who had taken over from Ms Livingstone. She had a face-to-face meeting with Ms McGlone shortly after their first contact.
On 27 July 2016 Ms Magar sent the applicant a copy of the final proposed rehabilitation program and return to work plan. The applicant stated that the proposed hours in the plan were “fine”, but there was no consideration of the fact that Dr Morris had advised against returning to NAB and that he would not sign a clearance for her to return.
The applicant stated that the thought of going back to NAB in any capacity makes her “anxious, fearful of the lack of support, fearful of rehashing and reliving the event and worried about how I will react in that environment…”
The applicant described herself as a “confident, happy, active, social person who loved her job” prior to the events in February 2015. She stated that her life has “changed dramatically” since that time. She has “anxiety attacks” and “anger outbursts” every fortnight, and has a lower tolerance for stress and uncomfortable situations. The applicant also noted that she has been admitted to hospital for self-harm, and has attended on her GP, Dr Bryan, to discuss instances of self-harm. She no longer has the same capacity to read books or watch TV for long periods of time. Her inability to see a psychiatrist since September 2016 has also contributed towards and “somewhat… enhanced” her condition.
Oral evidence
When giving evidence at the hearing of this matter, the applicant was asked about the steps she took towards recommencing work. She stated that suggestions were put to NAB about getting her back into the workforce, including Dr Morris’ suggestion of using host employment, but these suggestions were refused by the rehabilitation team at NAB.
The applicant was asked about the reason she failed to undertake the return to work program, and she indicated that the only reason was because she was under medical advice not to return. She stated that if Dr Morris had recommended the return to work plan and signed the medical certificate, she would have participated in the program.
During cross-examination the applicant was asked about some of the activities she undertook since ceasing work with NAB. She agreed that she had moved house in June 2015, and as part of the move she had to deal with various tradespeople. She agreed that she got married overseas in September 2015, and that she was responsible for organising the wedding.
The applicant also agreed that she had engaged in some volunteer work at her sons’ school, after she had discussed it with Dr Morris and he indicated that he believed it would be good for her. She stated that this occurred once a fortnight at most.
It was put to the applicant that she had told Dr Morris that she wanted to have an employment break to support her children more, and the applicant stated that she could not recall. However, the applicant agreed that she told Dr Morris that she was thinking about looking at positions which allowed her more time with her children. The applicant was referred to an offer of casual employment she received from Sandgate school, which she described as a receptionist position. She agreed that “at that stage” she felt capable of doing that job.
The respondent’s representative also asked the applicant about the possibility of working at her local NAB branch, and whether she had discussed this with Dr Morris. The applicant initially could not recall any potential jobs with NAB, but she then referred to a business banking role located in the city. She stated that she created an application for this role but did not submit it until she had spoken with Dr Morris. The applicant did not recall when she completed this application, but she confirmed that she recalled discussing it with Dr Morris. She stated that it took her a couple of days to complete the application. She agreed that at that time, she was prepared to complete an application to work with NAB.
The applicant was asked about the brief time she spent working with her husband, and she advised that this occurred in or around November 2015. She stated that she was responsible for entering home loan applications. She advised that this work ceased when she received a “demanding letter” from Ms Magar.
The applicant was asked whether she had notified Ms Livingstone prior to commencing work with her husband, and while she initially stated that she had, she subsequently clarified that she notified Ms Livingstone around the time that she started the work. The applicant agreed that Ms Livingstone notified her in November 2015 that she was not permitted to do that work because it was a conflict of interest. She agreed that she was told to cease work immediately. The applicant also agreed that she spoke with Ms Magar on 17 November 2015, and at that time Ms Magar reiterated that she had to stop work. The applicant stated that she had already stopped work at that stage.
The applicant was asked about the meeting between herself, Ms Magar, Ms Livingstone and Ms Neumann that took place in September 2015. She agreed that she told Dr Morris that the meeting was “crap”, and that, “absolutely yes” she told him that she was angry about how the meeting was conducted and the fact that there were discussions about her mental health. The applicant referred to Ms Magar taking the topic “off course”. When asked to elaborate on why the meeting made her angry, the applicant stated that Ms Magar had asked her questions about discussions between herself and Dr Morris, and that was not the focus of the meeting; the meeting was to discuss the rehabilitation program.
The applicant agreed that she has spoken with Dr Morris about also being angered by the emails from Ms Livingstone and the demands being put on her with respect to the requirements.
The applicant was referred specifically to her appointment with Dr Morris on 19 November 2015. She agreed that on that occasion she conveyed her anger at Ms Magar. However, she also agreed that on that day she told Dr Morris that she was open to returning to NAB in another role.
The applicant agreed that shortly afterwards she received an email from Ms Magar dated 27 November 2015, and that when she next saw Dr Morris on 3 December 2015 she told him that the email made her feel threatened and unsupported. The applicant accepted that the contents of Ms Magar’s emails were accurate. She agreed that she told Dr Morris that she did not want to have any contact with Ms Magar, despite never having met her.
The applicant confirmed that when she saw Dr Morris on 19 November 2015 she was still agreeable to returning to work at NAB, but after Ms Magar’s email of 27 November 2015 she was not. She stated that Ms Magar “created further anxiety”.
REHABILITATION PROGRAM
Report of Ms Christy Livingstone dated 16 June 2015
On 16 June 2015, Christy Livingstone, a Konekt consultant provided a s 36 assessment report.[14] The assessment was conducted to assess the applicant’s medical condition and capacity for work, develop any required strategies, recommendations and supports, and if appropriate develop a s 37 rehabilitation program and return to work plan.
[14] Exhibit E, annexure KH-1.
The assessment outlined the background details of the applicant’s compensation claim and psychiatric injury, which was noted as having taken place on 23 February 2015 after the applicant received an unfavourable email from an external mortgage broker. It was noted that the applicant reported being “disappointed with the perceived lack of support from NAB management and felt that NAB should take action against the external mortgage advisor who issued the email”. The applicant described “feelings of anger and disappointment”, “feeling let down by NAB” and having “negative thoughts about NAB”.

The assessment noted that the applicant had recently volunteered at her sons’ high school, and had re-engaged in all home activities such as childcare, cooking and cleaning. The applicant had also been assisting her husband with his home business by completing administrative tasks. The applicant reported still having a “strong interest” in the finance market.
In the assessment it was noted that the applicant felt “uncertain about how she could return to work with the NAB due to unresolved feelings about how she felt the situation should have been handled”. The consultant noted that she had spoken with Dr Morris on 5 June 2015, who advised that the applicant “seemed to be functioning well and her anxiety was situational to NAB”. However he also noted that in the short term it would be difficult to facilitate a return to work as the applicant was still feeling “traumatised and perceived a lack of support”.
It was also reported that the applicant had been advised on 11 June 2015 that the broker in question had been spoken to by her manager, Ms Neumann. This had occurred not long after the original email was sent, but this was unable to be communicated to the applicant as she had requested no contact from NAB management for several months following her departure from work. This information was conveyed to Dr Morris in the phone call on 5 June 2015, and he indicated that in light of this he would consult with the applicant about preparing for a return to work conversation between the applicant and Ms Neumann.
The assessment outlined that the initial return to work goal would be for the applicant to seek medical treatment with a view to being certified as fit to engage in a return to work conversation with Ms Neumann, and then engage in return to work planning discussions. Long term, the goal was for the applicant to return to her pre-injury hours in the same role with NAB. It was recommended that the applicant had the capacity to undertake a rehabilitation program.
The Tribunal was provided with a document containing a series of emails related to the establishment of the applicant’s proposed rehabilitation program. An internal NAB email dated 11 March 2015 outlined the details of how the applicant’s psychiatric injury was incurred. It was also noted that at that time the applicant was experiencing a number of personal issues, including a recent divorce, planning an overseas wedding, buying a house and having had a neighbour commit suicide last year.
Report of Ms Danielle McGlone dated 11 May 2016
On 11 May 2016, Danielle McGlone, a Konekt consultant provided a further s 36 assessment report.[15] It was noted in the report that NAB have made several attempts to facilitate suitable duties and a return to work plan for the applicant however none to date had been approved by Dr Morris.
[15] Exhibit B, Supplementary T Documents, T3.
During the assessment, the applicant reported experiencing symptoms of accelerated heart rate, pins and needles in the right hand, sweaty palms, feeling teary, frustration and anger when thinking about NAB. The applicant also reported avoiding social interaction but had no difficulties completing chores around the home or garden.
The report noted that the respondent was willing to accommodate a return to work program within NAB taking into consideration the restrictions outlined in the applicant’s current medical certificate and proposed that the applicant’s initial return to work plan would not require communication with external brokers or time pressures. Ms McGlone recommended that the applicant participate in a s 37 rehabilitation program – graduated return to work suitable duties program with considerations to be put into place to support the applicant with internal relationships at NAB given the applicant’s broken relationship with NAB and loss of trust. It was also recommended that the applicant continue to engage in treatments with Dr Morris to assist in minimising psychiatric symptoms and building resilience within the workplace.
The report noted the long-term goal was to successfully return the applicant to work in a suitable role with the location for this return yet to be determined. The report made note of both the applicant’s and Dr Morris’ indication that the return to work program should be undertaken with a host employer and considered that the applicant’s interest in securing a role outside of NAB may impact on her ability to undertake a graduated return to work program.
Various return to work plans
There are various return to work plans[16] that have been compiled by Ms Livingstone that are developed on a staged based program aimed at slowly increasing the applicant’s capacity to work in the view that she will return to her pre-injury hours and duties where applicable. The plans were amended where necessary particularly if suggestions were made by the applicant’s treating doctors. The plans were not signed by the applicant.
MEDICAL REPORTS
[16] Exhibit I.
Report of Dr Eric de Leacy, psychiatrist dated 5 May 2015
Dr Eric de Leacy, psychiatrist, prepared a report dated 5 May 2015 at the request of the respondent.[17] Dr de Leacy diagnosed the applicant with an ‘adjustment disorder with anxiety and depressed mood’. He described the condition as being of moderate intensity and would become chronic if it had been present for six months.
[17] Exhibit A, T Documents, T15.
Dr de Leacy considered that the work related factors involving the incident with the broker and feeling unsupported by NAB after the incident are responsible for the development of the applicant’s condition, that is, that the applicant’s employment with NAB was the significant contributing factor. Dr de Leacy considered that the precipitating evident that resulted in the applicant ceasing work with the respondent was the email from the broker in the context of a background of earlier harassment.
Dr de Leacy was unaware of any alternative stressors that could have contributed to the condition, and did not consider the applicant to have suffered an aggravation of an underlying condition.
Report of Dr Derek Lovell, psychiatrist dated 16 June 2016
Dr Derek Lovell, psychiatrist prepared a report dated 16 June 2016 at the request of the respondent.[18] Dr Lovell diagnosed the applicant with a ‘mild adjustment disorder with anxiety and depressed mood’. He described the applicant’s major areas of difficult as ‘increased irritability, loss of libido and chronic underlying feelings of anger’ towards the respondent.
[18] Exhibit A, T-Documents, T24.
Dr Lovell considered that there was a relationship between the applicant’s condition and her employment with the respondent, particularly because she felt unsupported by management as they were already aware of earlier emails that were sent to senior management by the broker. Dr Lovell considered that it would not be appropriate for the applicant to return to her previous substantive position with the respondent and she should not have contact with brokers, but considered the applicant capable of returning to other work within NAB outside of this area. Dr Lovell suggested the applicant would be suitable and capable of being a team member in customer settlement where she would prepare and process cheques, prepare settlement files and assist with discharging files. However, Dr Lovell noted that the applicant had expressed a wish not to return working for NAB and instead wanted a change of career direction.
Dr Lovell considered that the applicant did not suffer from an underlying or pre-existing condition and thus her condition was not an aggravation of a pre-existing condition. Dr Lovell commented that the applicant’s condition had improved significantly. Her symptoms of irritability were triggered when talking about NAB.
Dr Lovell recommended that the applicant commence a graduated rehabilitation program to ‘occupy her time and provide cognitive stimulation’. Dr Lovell also recommended that the applicant involve herself in communication and mediation with NAB rather than avoidance. He also recommended reduced contact with the psychiatrist.
MEDICAL RECORDS
Records of Telegraph Road Clinic – Dr Paul Bryan, general practitioner
The applicant’s mental health condition was first diagnosed by Dr Paul Bryan, her general practitioner (“GP”), on 24 February 2015.[19] Dr Bryan diagnosed the applicant with ‘reactive depression’ following ‘4 months of workplace conflict with external broker’. Dr Bryan noted that the applicant reported ‘insomnia, anorexia, stressed/low mood, social withdrawal, fatigue, trouble concentrating, and difficulty relaxing’. He also recorded that the applicant has a past history of reactive depression in 2010 following her divorce. Dr Bryan referred the applicant to Mr James Freeman, psychologist,[20] and Dr Adrian Morris, psychiatrist.[21]
[19] Exhibit A, T Documents, T6.
[20] Exhibit A, T Documents, T6.
[21] Exhibit A, T Documents, T8.
On 27 February 2015, the applicant reported “panic at thought of work”. Dr Bryan noted that:
“long discussion with patient and her partner regarding value of early return to work and risks associated with absence of work; patient and her partner not keen on her returning to work this week despite discussion, citing the stress related to dealing with her employers regarding this individual and the individual himself; explained potential for anxiety to increase the longer she is off work; offered referral to psychiatrist for second opinion and to manage return to work; accepted…”
On 17 November 2015, the applicant reported that she had stopped seeing the psychiatrist as she was not getting any benefit.
On 29 January 2016, the applicant reported that she feels supported but has significant anxiety with any contact from NAB.
On 24 February 2016, Dr Bryan discussed with the applicant that she was not fit to return to her pre-injury role.
On 7 October 2016, the applicant reported that her WorkCover claim had ceased and NAB are claiming that she refuses to return to work. The applicant explained to Dr Bryan that Dr Morris does not believe she is fit for work at NAB so he has only cleared her for return to work outside NAB but her contract precludes her from seeking out other employers. The applicant also advised Dr Bryan that her previous role at NAB no longer existed.
Records of Morris Family Psychiatry Services – Dr Adrian Morris, psychiatrist
On 10 March 2015, the applicant presented with depression and self-esteem complaints, with Dr Adrian Morris noting that the applicant was having suicidal thoughts: “life would be so much better if I wasn’t here – would simplify things”. Dr Morris noted that the applicant had been having these thoughts since her marital breakdown and divorce over 6 years ago. The applicant also commented that: “current situation at work is the icing on the cake”. It was noted that the applicant had received a personal attack in an email by a broker at work on 21 February 2015 and has not returned to work since discovering this email on 23 February 2015.
On 21 April 2015, the applicant presented with feelings of anxiety: “sleep still poor – problems staying asleep, wake 4-5 hours later, feel as if dozing. Still issues with employer, NAB, needing union support. Issues with NAB communication between manager and HR. NAB psychiatric review on 30/4/15”. It was on this occasion that Dr Morris, in a workers’ compensation medical certificate diagnosed the applicant with ‘adjustment disorder – depressive and anxiety disorder’ arising out of a work related injury, namely ‘bullying in workplace and previous harassment’.
On 28 April 2015, the applicant presented with ongoing anxiety regarding psychiatric review: “nervous as will need to retell story and re-traumatise herself with issues…still feels let down and unsupported as no urgency with claim, but swift to ring when med cert has run out. Still no info on response to broker… disappointment at lack of NAB response to broker, immediate and ongoing issue”.
On 25 May 2015, the applicant reported that her WorkCover claim had been accepted but was still distressed as the situation had not been fully resolved. The applicant reported being upset at NAB’s lack of respect for instruction to not contact her directly.
On 2 June 2015, the applicant reported ongoing symptoms of anxiety and lacked confidence with Dr Morris noting that the applicant: “still struggles to comprehend how she will be helped to avoid recurrence or future episodes for other colleagues”.
On 5 June 2015, the applicant discussed issues with “NAB appearing to Blacklist her”
On 17 June 2015, Dr Morris noted that the applicant had just seen Ms Livingstone. The applicant’s mood was “improving, though increased stress and anxiety when considering work and lowered mood accordingly”. There was also a decreased quantity of “dark thoughts” and increased irritability “when thinking or discussing work issues”.
On 25 June 2015, the applicant reported feeling calmer and more settled, and able to manage issues with “the ex much better”. Dr Morris also had a discussion with Ms Livingstone regarding case management including that it will be a slow recovery for the applicant and the applicant has concerns regarding change of role and redundancies in Sydney. Dr Morris agreed that the applicant was still one to two months away but needs “better understanding of processes and further improvement”.
On 30 June 2015, the applicant reported feelings of distress and worthlessness, with an increased growth of negative elements in recollections. The return to work process and engagement was discussed and it was noted that the applicant was unsure of whether she wanted to continue at NAB.
On 23 July 2015, the applicant continued to report feelings of low self-esteem and motivation, with a lack of support from the NAB management team.
On 3 August 2015, the applicant reported “coping well” and considering the return to work options but oppositional against return to NAB. There were discussions about looking at other positions including host employment.
On 18 August 2015, the applicant reported being very clear that she will not return to NAB or her management team as the roles have changed with altered targets and new goals. The applicant expressed an interest in a career break for one to five years and had sent a request for a career break prior to the compensation claim.
On 27 August 2015, Dr Morris was advised during a discussion with NAB and Ms Livingstone that a career break was not allowed under the legislation.
On 1 September 2015, the applicant reported being very distressed at a mention of work and there was a slow discussion and agreement reached to attend a meeting with NAB and Ms Livingstone.
On 16 September 2015, the applicant reported that the meeting went “crap”. Similar incidents involving the same broker are becoming apparent.
On 8 October 2015, the applicant reported increased stress with dynamics of uncertainty and “aware workcover will stop and needs some revenue coming in”.
On 14 October 2015, Dr Morris discussed with Ms Livingstone that NAB were keen for the applicant to return to work in the business unit but will need to challenge the applicant’s anger, irritability and poor attention first before offering NAB work and the choice of continuing the claim or ending it as the applicant is not doing the return to work plan.
On 21 October 2015, the applicant reported an episode of suicidal thoughts.
On 5 November 2015, Dr Morris spoke with Ms Livingstone and it was discussed that they were unable to see other options for host employment due to conflicts of interest. When discussing with the applicant the options, the applicant noted that she had been offered casual work at a school in administration as well as the possibility to work at a NAB local branch.
On 17 November 2015, ongoing issues regarding host employment were discussed and the applicant needs to return to NAB for work.
On 19 November 2015, the applicant reported that NAB refused any host employment, refused the applicant to attend a group 2 role, refused the applicant to re-attend previous position and reiterated that under no circumstances would a career break be given approval.
On 3 December 2015, the applicant reported feeling threatened by NAB’s email dated 27 November 2015 and that they had re-evoked false claims and misinformation to bully and intimidate her.
On 9 December 2015, Dr Morris had a discussion with Ms Livingstone regarding options for the applicant’s return to work with issues of other placements uncertain.
On 10 December 2015, the applicant discussed returning to work at NAB in level 2 – branch advisor role and coping strategies.
On 21 December 2015, the applicant expressed disappointment at recent lack of offers of employment but has been invited to look at other employment opportunities.
On 29 December 2015, the applicant reported feeling frustrated by the lack of progress with the return to work place however was “keen to move forward and complete action 1 way/other”. The applicant reported offering to attend Northlakes or Strathpine NAB branches to start some return to work activities in side rooms (computer based requirements).
On 5 January 2016, the applicant reported in good spirits but expressed frustration at NAB’s unwillingness to change as they still want her return work plan to involve working as a lending analyst.
On 11 January 2016, the applicant did not report any update regarding NAB or the return to work program; did report issues with her son’s birthday.
On 28 January 2016, the applicant reported being distressed about the return to work plan particularly as the job appears to be the same “but in a glass box”.
On 11 February 2016, the applicant reported ongoing distress about not being offered other positions and not being moved out of the lending unit. Returning to the applicant’s previous role is medically unsuitable.
On 23 February 2016, the applicant reported feeling confused with NAB’s inability to accept that she should not return to her pre-injury role and annoyed with NAB’s clear avoidance of medical advice.
On 9 March 2016, the applicant reported feeling settled and well. No correspondence received from NAB.
On 16 March 2016, the applicant emailed Dr Morris about NAB’s email to terminate the rehabilitation program. The applicant reported that she had “no idea of other roles being considered by NAB”.
On 5 April 2016, the applicant reported “NAB now coming back with proposed work – though unstated” and open to return to work plans but not with NAB. The applicant reported feeling settled and well.
On 11 April 2016, the applicant reported “working hard on consideration of future employment”.
On 28 April 2016, the applicant reported feeling more stressed than expected: “unsure of NAB plans and actions … unclear future and plans, no contact from Konnect except job in Melbourne – inappropriate”.
On 10 May 2016, the applicant reported no update from NAB but was still receiving work payments and agreeable to host return to work provision.
On 24 May 2016, Dr Morris discussed the s 36 report with the applicant. The applicant expressed that she still feels unable to return to NAB and not willing to at present due to mistrust issues.
On 21 June 2016, the applicant attend unhappy with the assessment of Dr Lovell and felt drained post assessment.
On 12 July 2016, the applicant reported no update from NAB – unsure of plans or outcome.
On 18 July 2016, the applicant attended distressed by NAB’s request for a new return to work plan.
On 9 August 2016, the applicant reported that she was still arguing with NAB as offered a settlement position but NAB is refusing to send her elsewhere. The applicant reported she was unable to apply for any finance job as breach of contract.
On 6 September 2016, the applicant reported feeling suspicious and distressed with NAB’s actions.
On 27 September 2016, the applicant reported increased issues with NAB who are allegedly reducing support and monies.
EMAILS

On 27 November 2015, the applicant received an email from Susan Magar at NAB that, as discussed, the applicant must cease working for her husband as it represents a conflict interest and further, does not comply with the obligations of the compensation claim (being certified unfit for all duties). Ms Magar reiterated to the applicant that if NAB needs to request this of the applicant again, then disciplinary action may be taken including potentially reviewing the applicant’s employment with NAB.
On 9 December 2015, Ms Magar emailed the applicant following up from their last conversation on 17 November 2015. Ms Magar writes that she:
‘did not want you to feel overwhelmed and that every assistance would be provided to see that you felt comfortable and supported.
I would sincerely like to assist you and do not wish to upset you in any way. I was greatly encouraged by your participation in the teleconference we had in September and hope we can continue to work together to see you achieve your goals. I can appreciate this has been a difficult time for you and I understand you have indicated you do not wish to talk with me but would ask you to reconsider this. I would love to assist you in your return to work and happily integrate back into the team’.
On 9 December 2015, Dr Morris emailed Ms Livingstone outlining that the applicant:
·“is not medically able to return to her pre-injury employment in the lender’s unit. This is due to the high likelihood of her relapsing related to the pressures of the position. I believe she will not be able to return to this position due to described nature of the work and dynamics involved in such work – ongoing constant demands, urgent time-frames with little notice, and perceived limited support availability or protection from bullying and harassment by outside agencies.
·She is able and agreeable to return to work at NAB in a different department or position such as in a local branch or office.
·She is likely to quickly improve in her confidence in a supportive, less stressful, less demanding and confrontational role.
·She will then improve in her mental state and function, hopefully back to her pre-injury level.
·She will need a gradual RTW schedule, similar to those suggested, half days and increasing days worked gradually and then move towards full days and half days and then back to her full-time pre-injury hours.”
On 29 January 2016, Ms Livingstone emailed Ms Magar providing a summary of her discussions with the applicant and Dr Morris at the medical case conference. The email highlights:
·Dr Morris expressed concern with the long term goal being for the applicant to return to her pre-injury duties as a Lending Associate.
·Dr Morris advised that any role in the applicant’s pre-injury environment would be unsuitable due to the nature of the role and the expected exposure to brokers in the work.
·The Konekt report mentioned the applicant doing similar duties to that of her pre-injury role for her husband prior to being advised not to do so.
·The applicant had concerns regarding the definition of ‘assistant’ to Lending Associate and whether she would have to report to the Lending Associate. The applicant was advised that she would report directly to Cathy Neumann as she normally would.
·The applicant expressed concern about the proposed duties of ‘application progression through our back office’ and ‘access to partnered Lending Associate’s email account to draft correspondence on their behalf’ as these duties would involve exposure to brokers. Dr Morris considered these duties would be unsuitable as the exposure to brokers is uncontrollable with the risk of exposure possible regardless of whether the duties were removed. Dr Morris considered that the applicant would need to be placed into a different role in a different business unit.
·Ms Livingstone clarified that the applicant could arrange and attend appointments with Dr Morris during business hours.
·Dr Morris considered the proposed days and hours suitable in the draft return to work plan #2, and that with weekly increments the applicant would return to full hours over a 6 week period.
·The applicant reported a lack of trust with NAB particularly as she has been advised of ongoing information from business managers at NAB that changes are happening for the Lending Associate role which have not been communicated to the applicant. The applicant reported that Cathy Neumann was not providing the full story on this.
·Aside from the proposed long term goal of returning the applicant to her pre-injury work duties, there were no concerns raised by the applicant or Dr Morris regarding the draft rehabilitation program.
On 1 February 2016, the applicant emailed Ms Magar noting:
‘I’m concerned that anyone in that meeting formed the impression that there were trust issues between myself and Cathy. I have nothing but the highest respect for Cathy and her position. The point I made to Dr Morris and Christy that was from time to time, people in management are privy to information that they cannot distribute through to the team. This could be due to commercial sensitivities or operational matters.
This is normal for any company.
Whether Cathy has any knowledge or not about the future of these positions, I am sure she would share when relevant. I don’t believe that she would withhold crucial information from me, however as I mentioned in the meeting on 3 occasions different persons within NAB Broker had advised of up and coming changes, which were discussed at the NAB Broker Conference in November 2015.
Cath, your support throughout has been appreciated and I will have no problems working with you moving forward’.
On 11 February 2016, Dr Morris emailed Ms Magar regarding the applicant’s return to work plan outlining that:
“seems to have missed the key point stated in my email dated 9/12/15 at 22:57 to C.Livingstone, the rehab provider from Konnect, which I believe you have been forwarded as agreed. It states ‘she is not medically able to return to her preinjury employment in the lender’s unit’. It expands the reasons out as ‘this is due to the high likelihood of her relapsing related to the pressures of the position. I believe she will not be able to return to this position due to described nature of the work and dynamics involved in such work ongoing constant demands, urgent timeframes with little notice, and perceived limited support availability or protection from bullying and harassment by outside agencies’”.
On 16 February 2016, Ms Magar emailed Dr Morris advising that she appreciates his feedback and recommendations in relation to the applicant’s rehabilitation and return to work and has tried to accommodate the restrictions outlined in the communications. Ms Magar outlined that the applicant’s manager is very supportive and propose that there be no verbal or written/email communication with brokers and the duties would be self-paced without time pressures.
On 23 February 2016, Dr Morris sent an email to Ms Magar from NAB regarding the return to work plan. Dr Morris states that:
“… I am struggling to understand your position and planning process with the latest RTW plan. It has a number of problems from my viewpoint, which I have detailed below and are seen in the attachment and hand written notes made on it.
…
The RTW goal is still incompatible with the medical advice which has not changed in recent weeks unable to return to her preinjury role. The medical recommendation of an inability of the work to return to the preinjury role is still being consistently ignored form unclear reasons.
The RTW goal fails to acknowledge medical advice and need to new role to be offered or redundancy due to injury to be offered.
The plan appears to failure to understand the concerns and possible consequences from it’s (sic) implication a well documented high risk of relapse of the patient’s depressive and anxiety features despite treatment provision and improvement.
…
I am sorry for being so blunt but the lack of useful progression is frustrating to all. The apparent need for NAB to offer Ms Hogan a new role to work into, or for her employment to be ended for her failure to manage to RTW to her preinjury position appears overt. Can this be sorted out as it appears the only solution at present.”
On 9 March 2016, Dr Morris emailed Ms Livingstone advising that the applicant is “fit for a RTW work plan, but I can not find any correspondence in regard to her RTW plan since my email on 23/2/16, or Christy’s on 2/3/16.” Dr Morris also explained that the applicant described being distressed when her husband mentioned work issues. Dr Morris re-iterated that the applicant is unable to manage the work situation again and it is recommended that she is moved to a different role and environment, without likely confrontation and possible intimidation, and bullying occurring. Dr Morris continues by saying that he is not confident this can be offered in a broker role for NAB as that behaviour may be likely to reoccur or perceived as occurring again, all of which would be very detrimental to the applicant’s mental stability.
On 16 March 2016, Ms Magar emailed the applicant advising that she is “endeavouring to secure such a role for you” in relation to Dr Morris’ recommendation that the applicant be moved into a different role and environment.
On 13 July 2016, Ms Magar emailed the applicant attaching a draft s 37 rehabilitation program developed following the feedback from Dr Lovell and a proposed graduated return to work plan. The applicant was given until 27 July 2016 to provide any feedback.
On 27 July 2016, Ms Magar requested the applicant sign the s 37 program and the graduated return to work plan. In a reply email to Ms Magar, the applicant advised that she would not be signing the graduated return to work plan under the advice of her psychiatrist. The applicant requested a reconsideration of the return to work plan decision on the basis that Dr Morris, in a medical certificate dated 16 May 2016 advised that the applicant should return to work in a different company (and not NAB) and that the avenue of host employment should be considered.
On 18 September 2016, the applicant sent an email to the respondent advising that she will not be attending the recommencement of her return to work program. The applicant outlined the following reasons for doing so:
·     Despite Dr Lovell’s comments that the applicant’s condition had improved, her condition was still present and has only improved because of taking medication and being away from NAB.
·     The applicant’s position at NAB ceased in September 2016. Further, her skills are in mortgage broking and not in settlements. The applicant noted there was no career progression in settlements and that this would only be for the short term, and questioned what would happen when she returns to full-time hours.
·     The applicant outlined that she was “prepared to consider a return to work process – not with the NAB, as mentioned on my medical certificates from Dr Morris. I am eager to enter back into the workforce. NAB has neglected to understand the previous communication Dr Morris provided to Susan Magar. On several occasions Dr Morris advised NAB, ‘Kylie is able to return to the work force, just not with NAB’ and has provided reasoning’s why.”
·     The applicant advised that she had no faith in NAB and returning to NAB as it will be detrimental to her health. The applicant noted that the email from the broker was sent to the NAB legal team to which the legal team advised, ‘It was a personal attack on Kylie and had nothing to do with NAB Company’.
SUBMISSIONS
Applicant submissions
Suitable/appropriate program
The applicant submits that the return to work program was not a suitable or appropriate one for medical reasons because it required the applicant to return to work with the respondent contrary to medical advice. The applicant submits that should the Tribunal accept this submission, then the reviewable decisions dated 22 August 2016 and 9 March 2018 should be set aside and in substitution a decision be made to remit the matters to the respondent to consider a further rehabilitation program. Alternatively, the applicant submits that even if the program was suitable or appropriate, the applicant had a reasonable excuse for refusing to undertake the program. The applicant submits that should the Tribunal accept this submission, then it should set aside and substitute the decision of 9 March 2018 deciding that the applicant had a reasonable excuse for not undertaking the program.
The applicant also seeks costs pursuant to s 67 of the Act.
The applicant submits that between 18 November 2015 and 22 February 2016, over five return to work plans were prepared by the respondent with a goal of returning the applicant to a lending role which was contrary to the medical advice of Dr Morris. The applicant submits that while none of these earlier plans form a part of the decision under review, it is reasonable to see how repeatedly proposing that the applicant return to a lending role would produce distress and trigger feelings of anger and irritability in the applicant.
The applicant submits that the program of 27 July 2016 which included a requirement that the applicant undertake work within the respondent’s ‘customer settlement’ team is not suitable or appropriate because:
·     On 24 May 2016, Dr Morris certified that the applicant will need to return to work in a different company.
·     Dr Morris’ opinion was not a newly invented one and his clinical notes considered the need for host employment as early as 18 August 2015.
·     Dr Morris’ oral evidence explained that if the applicant returned to work with the respondent she would likely be triggered and is unlikely to be able to manage working for the respondent in the professional manner required.
The applicant submits that the evidence of Dr Lovell must be considered in light of him not having the advantage of reviewing Dr Morris’ records or the draft rehabilitation programs. The applicant submits that Dr Lovell only briefly glanced over Dr Morris’ notes before giving oral evidence. The applicant submits that Dr Lovell’s opinion was that at the time of assessment, the applicant should not return to her lending role because she might transfer her anger towards brokers and treat them inappropriately however when questioned as to why the same risk of anger symptoms being triggered would not arise in taking up another work role with the respondent, Dr Lovell did not provide any convincing evidence. The applicant further submits that it appears to be Dr Lovell’s personal opinion that the applicant should confront her anxiety rather than avoid it by returning to the workplace however, eventually accepted that others might view host employment as helpful.
The applicant ultimately submits that Dr Morris’ recommendation that the need for host employment as a stepping stone should be preferred and a finding made that the program was not a suitable or appropriate one.
Reasonable excuse
The applicant submits that if the program is found to be suitable and appropriate, then the applicant had a reasonable excuse for not undertaking the program. The applicant submits that when considering whether an applicant has a reasonable excuse for not undertaking the program the respondent must comply with any guidelines issued by Comcare under s 41 of the Act (Guidelines for Rehabilitation Authorities 2012). The applicant submits that cl 33.2 of the Guidelines deals with matters that the delegate should consider when determining whether an employee had a reasonable excuse for refusing or failing to undertake a rehabilitation program, and these matters include ‘medical inability or risk to the employee in undertaking the rehabilitation examination or program’.
The applicant relies on the tentative principles outlined in Nunez and Australian Postal Corporation [2014] AATA 125, where a person with a reasonable excuse has a genuine intention to pursue a program of return to work; a genuine subjective belief in the factual basis of the excuse which is supported by some informed expert opinion of the subjective belief. The applicant also submits that the Tribunal is required to direct its attention to the reasons put forward by the applicant at the time for not commencing the program.
The applicant also relies on the principles in Pascoe and Australian Postal Corporation [2004] FCAFC 4, including:
· Section 37(7) of the Act is directed at reasons ‘personal to the employee’ as to why he or she failed or refused to undertake the rehabilitation program [19].
· The Tribunal’s task is to evaluate the reasonableness of any excuse presented and to make an objective assessment of the employee’s excuses for not participating in the rehabilitation program [21].
The applicant submits that she had a reasonable excuse as she was acting on medical advice and applying Singh and Comcare [2012] AATA 652 at [53], the Tribunal found that the applicant had a reasonable excuse for not returning to work for the rehabilitation program as the employee could not be criticised where ‘his own doctor confirmed his own opinion that he was unfit to work and his doctor, to Mr Singh’s belief, was acting honestly and reasonably in coming to that assessment’. The Tribunal continued by saying that, even when a different doctor provided an opinion that the employee was fit for work, the employee ‘was hardly in a position to make a judgment that his own treating doctor was wrong and [the other] doctor was right’ (at [55]).
The applicant submits that she consistently demonstrated a genuine intention to return to work including offering to attend the respondent’s local branches to start some return to work activities and took the initiative to find a branch business banking role online. The applicant submits that by no later than 5 April 2016, Dr Morris had formed the view that the applicant’s injury related anger and distress precluded her safe and effective ability to return to work with the respondent.
Respondent’s submissions
The respondent submits that the Tribunal is not required to determine whether the applicant suffers from a ‘disease’ for the purposes of the Act as the respondent accepted liability to pay compensation to the applicant with respect of an ‘adjustment disorder with anxiety and depressed mood’. It then follows that this ailment was contributed to, to a significant degree, by the applicant’s employment by the respondent.
The respondent submits that the applicant refused to undertake the rehabilitation program because it was not on her terms and this cannot be considered a reasonable excuse. The respondent submits that greater weight should be given to the opinion of Dr Lovell (that the applicant had full capacity to undertake the rehabilitation program) than that of Dr Morris. The respondent makes this submission on the basis that Dr Morris became more of an advocate than a dispassionate professional particularly given the circumstances of familiarity where Dr Morris would see the applicant so regularly. The respondent submits that Dr Morris’ position would shift depending on the applicant’s personal preference, and so when the applicant showed a willingness to return to work for the respondent he would support this course however, when the applicant showed an unwillingness to return to work for the respondent Dr Morris would amend his position accordingly.
The respondent submits that:
·     On 3 June 2015, the applicant was assessed by Ms Livingstone and her report dated 16 June 2015 noted that Dr Morris had indicated that ‘a return to pre-injury duties with NAB is realistic’. The report recommended that the applicant undertake a program ‘aimed at stabilising her symptoms and supporting her towards regaining capacity to engage return to work planning and participating in a suitable duties program’.
·     On 3 August 2015, Dr Morris made a note that included ‘considering RTW options – oppositional against return to NAB’.
·     On 18 August 2015, Dr Morris noted ‘increased thoughts of RTW, though not NAB at present’ and ‘discussion of RTW plans – host employment’.
·     In September 2015, the applicant attended a meeting with Ms Livingstone and NAB representatives and the applicant felt that the meeting did not go well. Following this meeting, the applicant saw Dr Morris who noted ‘adamant not returning to NAB at present as too distressed whenever NAB mentioned’.
· In November 2015, the respondent liaised with the applicant and Dr Morris regarding two draft rehabilitation programs and it is accepted that Dr Morris did not endorse certain aspects of the proposed programs but that the Act contemplates a degree of consultation between the various interested parties as part of the process of formulating a suitable program.
·     By November 2015, the applicant’s mental health had improved and she was at a reasonable level of functioning. This is shown in the level of her activities over the preceding months including celebrating a marriage, gone on a honeymoon, moved house including contracting various tradespeople and volunteering at her son’s tuckshop.
·     On 5 November 2015, Dr Morris noted that the applicant was continuing to do well, offered casual work as administration work and offered a possibility of working at a NAB local branch.
·     On 3 December 2015, Dr Morris noted that the applicant had ‘become more stubborn as feeling backed up into wall’. They also discussed her feelings of being unsupported and not returning to the lender’s team.
·     On 9 December 2015, Dr Morris emailed Ms Livingstone stating that the applicant was ‘able and agreeable to a return to work at NAB in a different department or position such as in a local branch or office’.
·     On 10 December 2015, Dr Morris noted that the applicant was agreeable to a return to work plan and was accepting the need to return to NAB to complete her own recovery – accepting of graduated return to work program.
·     On 29 December 2015, Dr Morris noted that the applicant had offered to attend the Northlakes or Strathpine NAB branches to commence some return to work activities in side rooms with only some residual anger when discussing NAB.

The respondent submits that Dr Morris’ opinion that the applicant did not have capacity to work until 6 December 2015 was not correct as by November 2015 the applicant had capacity to work as she had been working for her husband in a finance role; and that from January 2016 it was apparent from Dr Morris’ notes that the applicant was doing well psychologically. On 11 January 2016, Dr Morris concluded that the applicant was ‘asymptomatic’ after administering the Hamilton Rating Scale for Depression (“HRSD”).
The respondent submits that on 11 February 2016, Dr Morris wrote to Ms Magar and noted that the applicant was ‘able and agreeable to a return to work at NAB in different department or position such as in local branch or office’. Dr Morris maintained that this was his view at the time when giving evidence.
The respondent submits that on multiple occasions Dr Morris did not place restrictions on the applicant returning to work with the respondent but only that the scope of the return to work duties should not involve returning to work as a Lending Associate.
The respondent submits that Dr Morris had been treating the applicant regularly and had been in communications with the respondent about a return to work plan for nearly one year so it is to be expected that if Dr Morris did have any concerns about the applicant returning to work for the respondent that he would have raised these concerns in communications with the respondent.
The respondent submits that Dr Morris’ opinion changed on 5 April 2016, in line with the applicant’s personal decision as to what she was open to do: ‘open to return to RTW, not to NAB’. The respondent submits that by April 2016 it was the applicant who was not open to returning to work with the respondent and that Dr Morris’ opinion was not formulated independently. On 24 May 2016 this opinion was highlighted in the applicant’s workers’ compensation medical certificate: the applicant ‘will need RTW in different company, not NAB’. The respondent submits that this change bespeaks of change in the applicant’s psychological state however, this is not evidenced in the HRSD which was administered on the same day again, concluding that the applicant was ‘asymptomatic’.
The respondent submits that following on from the independent medico-legal examination with Dr Lovell, a draft return to work plan and rehabilitation program was provided to the applicant and Dr Morris for his input on 13 July 2016. The rehabilitation program commenced on reduced hours in the role of Team Member, Customer Settlement based on Creek Street.
On 27 July 2016, the applicant advised that she would not be starting the return to work plan because the current medical certificate of Dr Morris stated she was unable to return to work for the respondent.
On 27 September 2016, the applicant saw Dr Morris for the last time and his notes indicated that the applicant ‘considered and tried to complete application for NAB job in HR – no financial involvement – unable to complete online form before deadline…discussion on suitability to RTW for NAB in certain areas as feels able to control anger as desperation for work greater than anger at NAB…med cert no longer suitable…depression in remission on medication’.
The respondent submits that Dr Lovell’s opinion is independent and based on the relevant expertise and thus should be given greater weight. The respondent submits that Dr Morris’ opinion is not independent and that without adequate explanation, his opinion has changed over time as the applicant’s personal views changed.
The respondent submits that the key issue before this Tribunal is the applicant’s capability of undertaking the rehabilitation program and whether the applicant had a reasonable excuse not to undertake the rehabilitation program as at 22 September 2016. The respondent submits that the Tribunal must assess the reasonableness of the excuse for not undertaking the program as opposed to whether the rehabilitation program was appropriate (Australian Postal Corporation and Nunez [2014] FCA 1095).
The respondent relies on the following exert of Comcare and Singh [2012] FCA 136 at [27]:
It is also convenient to observe here that I should not be taken as accepting the propositions put for Mr Singh that the phrase “without reasonable excuse”, in the context of s 37(7), requires nothing more than an excuse which has some rational foundation, as opposed to one which is irrational, considered from the perspective of the employee. No authority was cited for this approach. It is not supported by the concept that the reason must be “personal to the employee”, discussed in Telstra Corp Ltd v Administrative Appeals Tribunal (2003) 37 AAR 40; [2003] FCA 102 at [11] and Pascoe v Australian Postal Corporation (2004) 77 ALD 464 ; [2007] FCAFC 4 at [18]–[21], the latter of which also emphasises the need for the AAT to “evaluate the reasonableness of any excuse presented …” (at [21]). On first consideration, the submission put for Mr Singh would seem to give no work to the qualification of “reasonable” which generally involves an element of objectivity, even if applied in the circumstances as known to the employee at the time. It cannot be, however, that the subjective state of mind of the employee is the sole dictate of what is a reasonable excuse provided that there is some rational foundation for the employee’s state of mind.
The Guidelines for Rehabilitation Authorities 2012 made under s 41 of the Act provide:
In considering the refusal, failure or obstruction the case manager should have regard to what constitutes ‘reasonable excuse’, including but not limited to:
(a) the medical inability or risk to the employee in undertaking the rehabilitation examination or program—supporting medical evidence would be required if medical reasons are an issue; or
The respondent submits that it is important to consider whether the applicant has a genuine intention to pursue a program of return to work and a genuine subjective belief in the factual basis of the excuse (Nunez and Australian Postal Corporation [2014] AATA 125 at [28]). The respondent submits that the manner in which the applicant vacillated between being prepared to return to work for the respondent and then being unprepared supports a finding that the applicant was ambivalent about participating in a rehabilitation program unless it was on her terms. The respondent considers that the applicant did not exhibit a genuine intention to pursue a program of return to work and did not have a genuine subjective belief in the factual basis of her excuse as her evidence before the Tribunal disavowed all of the reasons she gave in the email of 18 September 2016 for why she would not participate in the return to work plan which she volunteered as incorrect. The respondent submits that the applicant had convinced herself by December 2015 that Dr Morris’ preference was for her to return to work with a host employer however that this is not the case, and in fact Dr Morris’ clinical notes outline that in December 2015 he endorsed the applicant’s return to work with the respondent as part of a rehabilitation program.
The respondent ultimately submits that the real reason for why the applicant refused to undertake the rehabilitation program was because it was not on her terms and that a simple dissatisfaction of the terms of the program cannot constitute a reasonable excuse for refusal or failure to undertake the plan (Pascoe and Australian Postal Corporation [2004] FCAFC 4).
Applicant’s reply submissions
The applicant submits that while it may be accepted that Dr Morris was highly involved in the applicant’s rehabilitation, this does not undermine his medical opinions which were well reasoned and clearly articulated. There is nothing to indicate that his opinions were dishonest.
The applicant submits that the better characterisation of Dr Morris’ evidence is not that he accepted the applicant’s personal preferences as to whether she wished to return to work for the respondent, but rather he properly took into account the applicant’s emotional and psychological capacity to return to work for the respondent immediately.
The applicant submits that while it is undisputed that at least up until early 2016 Dr Morris was largely supportive of the applicant directly returning to work for the respondent, the events of 2015 and 2016 must be considered in the context of:
·     The multiple return to work plans that had been proposed contrary to medical advice – repeatedly suggesting unsuitable plans is the type of conduct likely to trigger symptoms of anger and distress impeding on her capacity to immediately return working for the respondent.
·     As early as 8 October 2015, Dr Morris had indicated that ‘probable host employment was needed as a stepping stone’.
·     It is unrealistic to read Dr Morris’ medical certificate of 16 March 2016 which proposed a non-lending role without taking into account the contextual matters.
The applicant submits that it is hollow for the respondent to submit that it would be expected that if Dr Morris had concerns he would have explicitly stated these in communications. The applicant submits that he flagged the concerns on 8 October 2015 and 5 April 2016.
The applicant submits that by April 2016:
·Dr Morris had realised that the applicant’s emotional state was going to impede on her ability to successfully return to work with the respondent as he had identified she had a lot of anger and distress when thinking of the respondent. This is consistent with Dr Lovell’s view that the applicant’s irritability and anger are at least partly a product of her psychiatric illness.
·The applicant’s expression to Dr Morris regarding her views about returning to the respondent had vacillated which is understandable for a person suffering from a depressive psychiatric condition caused by working for the respondent.
·That the applicant’s expressions about returning to work for the respondent when conveyed to Dr Morris are not a ‘personal choice’ but rather a manifestation of her psychiatric illness.
The applicant submits that Dr Morris amended his medical advice to take into account the developing symptoms of the applicant’s psychiatric illness, including distress and anger as opposed to reflecting the applicant’s personal view. The applicant submits that this in line with Dr Morris’ view, Dr Lovell also acknowledged that another option would be alternate employment as a stepping stone.
The applicant submits that Dr Morris’ role as a treating psychiatrist should not affect the weight of his medical opinion and that his views are fully explained. The applicant submits that Dr Morris’ recommendations regarding the draft work plans are based on the risk of the applicant relapsing and that Dr Lovell also identified that there was a risk of the applicant’s symptoms being triggered by some elements of working for the respondent.
The applicant considers that whether the applicant had a reasonable excuse as at 22 September 2016 should be rejected as this was merely the date on which the respondent made its decision that there was no reasonable excuse. The applicant submits that the question is whether the applicant refused or failed, without reasonable excuse, to undertake the program that was to run from 1 August 2016 to 9 September 2016 as pursuant to the respondent’s decision of 27 July 2016, the applicant was required to commence the program on 1 August 2016 to be completed by 9 September 2016.
The applicant submits that the applicant may well have vacillated between being prepared and then unprepared to return to work for the respondent however this is explicable by the nature of her psychiatric illness and symptoms and that the applicant’s evidence that she was willing to, and genuinely intended to pursue a return to work program should be accepted. The applicant submits that her conduct during the period leading up to the program decision supports a finding that the applicant consistently engaged in the rehabilitation process with a view to establishing a suitable program, evidenced by her own steps to identify possible work at a local branch. The applicant submits that her reason for advising that she will not undertake the program is evidenced in her email reply on 27 July 2016 which highlights that this position was based on the medical advice of Dr Morris.
CONSIDERATION
On 22 August 2016 a determination was made under s 37(1) of the Act for the applicant to undertake a rehabilitation program. The case for the applicant is that the rehabilitation program was not a suitable or appropriate one for medical reasons. In Pascoe and Australian Postal Commission [2004] FCAFC 4 (at [14]) the Full Court of the Federal Court of Australia emphasised that the appropriate way to challenge a particular program is to seek its reconsideration under s 38(2) of the Act, this was done in this case. On 27 July 2016 the applicant sought reconsideration of the rehabilitation program on the ground that in a medical certificate dated 16 March 2016 Dr Morris had recommended that the RTW should be done in a different company and not with the respondent. However, on a number of occasions Dr Morris had previously recommended that the RTW should occur at the respondent: he did this when he made recommendations on 9 December 2015 and on 11 February 2016. On 16 March 2015 Dr Morris made a recommendation that the RTW should involve a different role to lending assessors but did not recommend that the applicant work somewhere other than at the respondent.
It was only after the applicant and her husband had attended on Dr Morris on 5 April 2016 that Dr Morris made a recommendation on 24 May 2016 that the applicant will need a RTW in a different company and not at the respondent. It is apparent from an examination of the notes of the attendance on 5 April 2016 that there is a reference to the applicant being “Open to return to RTW, not to NAB”. I have made the inference that it was the applicant who did not want to work at the respondent. There are no clinical notes which explain or give any reasons for why Dr Morris considered that the applicant should not work at the respondent and why he changed his previous recommendations.
The applicant in her email dated 27 July 2016 has indicated that she will not undertake the rehabilitation program. On 18 September 2016 the applicant also indicated that she would not undertake the rehabilitation program. I rely upon these emails to make a finding that the applicant had refused to undertake the rehabilitation program.
What is in issue before the Tribunal is whether there was “reasonable cause” for the applicant refusing to undertake the rehabilitation program and go back to work with the respondent. During cross-examination the applicant agreed that at the end of December 2015 she was willing to attend the Northlakes or Strathpine branches of the respondent as part of a return to work program. Before this Tribunal it was put to the applicant that by July 2016 she had decided by her personal choice that she did not want to return to work at the respondent, the applicant denied such a suggestion. Instead the applicant agreed that she did not sign the return to work program form because Dr Morris had said that she should not. The applicant also remarked that was the only reason why she did not sign the form. She said that she would have signed the form if Dr Morris had signed the medical release.
I do not accept that the applicant would have returned to work with the respondent if Dr Morris had agreed with this course of action. Having regard to the totality of the evidence before me I consider that when the applicant refused to undertake the rehabilitation program on 27 July 2016 she did not want to return to work with the respondent. The letter of 6 May 2015 indicated that the applicant was “accepting of and keen to have an employment break and support children more”. On 7 June 2016 when the applicant saw Dr Lovell she informed him that “she does not wish to consider a return to the NAB and wishes to change career direction”. In the statement of June 2017 the applicant indicated that she was looking into becoming a self-employed finance broker. Having regard to this evidence, I do not consider that the applicant had on 27 July 2016 a genuine intention to resume work with the respondent. I rely upon the conclusion that Dr Lovell reached in his report of 16 June 2016[22] that the decision of the applicant “not to return to work is a personal choice”.
[22] Exhibit A, T-Documents, T24 at p.8.
I also place great weight upon the opinion of Dr Lovell as expressed in his report dated 16 June 2016 that the applicant then had a current capacity to work with the respondent. Dr Lovell was extensively cross-examined and maintained his opinion that the mild psychiatric condition of the applicant would not have prevented her returning to work for the respondent. Dr Lovell gave valid reasons why it was feasible that the rehabilitation program could be undertaken at the respondent. Dr Lovell considered that the applicant had capacity to return to work at the respondent provided that she was restricted from work with brokers. Dr Lovell pointed out that to not return the applicant to work at the respondent would be unproductive having regard to the applicant’s good transferable skills and connections that she had at the respondent. Dr Lovell mentioned that although the applicant had issues with management she had a good relationship with other colleagues. Dr Lovell was positive about the experiences that the applicant had in the host environment being the tuckshop and uniform shop which was bringing about social interaction. I consider that Dr Lovell gave a balanced assessment.
The applicant remarked that when she last saw Dr Morris in September 2016 she had informed him that she had filled out an application for a job at the respondent. At the hearing the applicant indicated that she was able to go back to work with the respondent. However, what I have to decide is whether there was “reasonable cause” for the applicant refusing to undertake the rehabilitation program. In order to determine this issue I have had regard to the events of 18 July 2016 when the applicant discussed the return to work plan with Dr Morris. Dr Morris confirmed that he did not then make a note of ever giving her that advice. Dr Morris, however, maintained that he would have basically advised her that he had strong concerns that if she returned to a position at the respondent with her mindset she would have acted in an unprofessional manner and would have broken the code of conduct of the respondent. On 19 August 2016 Dr Morris issued a certificate which indicated that the applicant would need a RTW in another company, not NAB, as well as working in a less stressful and time pressure demanding role: there were no reasons for this recommendation accompanied to the certificate.
I have come to the conclusion that there is no cogent evidence that there was “reasonable cause” for the applicant refusing to undertake the rehabilitation program. I have come to this conclusion is because the clinical notes of Dr Morris for the appointment of 18 July 2016 do not record the reason why Dr Morris then gave his advice for the applicant not to return to work with the respondent. In contrast, the summonsed records of Dr Morris certainly record in some detail the advice that he gave to the applicant on other occasions.[23] Dr Morris at the hearing stated that he “would have” given that advice. However, in the absence of a contemporaneous medical document which outlines the reasons for not providing a medical clearance, I do not accept that his recollection is accurate. I have not lightly come to this conclusion. Dr Lovell under cross-examination did not agree that there was a risk that the anger of the applicant would be transferred to others in the bank even if she was not involved with lending. Dr Lovell conceded that the applicant might be snappy and irritable but emphasised that it was important for people to face the anxiety and apprehension they have about returning to the workplace. Dr Lovell appreciated that the applicant had been out of the workplace for some time.
[23] Exhibit D, Various records of Telegraph Road Clinic.

Having regard to all the evidence I am satisfied that the applicant refused to undertake the rehabilitation program on 27 July 2016 and 18 September 2016. I do not consider that the applicant had a reasonable excuse for not undertaking the rehabilitation program on 27 July 2016 or 18 September 2016 when the applicant sent her emails or on 22 September 2016 when the determination to suspend the applicant’s rights to compensation was made. I have been greatly assisted by the observations of Jagot J in Comcare and Singh [2012] FCA 136 at [27], I do not consider that there was any rational foundation for the applicant to not undertake the rehabilitation program at the respondent. In my opinion Dr Lovell gave cogent reasons why the rehabilitation program should be undertaken at the respondent.
DECISIONS
I affirm the decisions under review.

I certify that the preceding 172 (one hundred and seventy-two) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD

.......................[SGD]..................................
Associate
Dated: 1 May 2019

Dates of hearing:

Date final submissions received:

19 March 2018

20 March 2018

15 May 2018

Solicitor for the Applicant:

Counsel for the Applicant:

Solicitors for the Respondent:

Counsel for the Respondent:

Maurice Blackburn Lawyers

Matt Black

Minter Ellison

Anthony Harding