Huber and Comcare (Compensation)
[2017] AATA 701
•19 May 2017
Huber and Comcare (Compensation) [2017] AATA 701 (19 May 2017)
Division:GENERAL DIVISION
File Number(s): 2015/5481
Re:Marie-Luise Huber
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Miss E A Shanahan, Member
A Burke, MemberK Parker, Member
Date:19 May 2017
Place:Melbourne
For the reasons outlined, the Tribunal concludes that Comcare’s Decision to affirm IP Australia’s Determination was the preferable decision and should be affirmed.
......................................................................
Miss E A Shanahan, Member
WORKERS’ COMPENSATION – physical and psychological injuries - rehabilitation program – rehabilitation determination – consideration of whether to include tertiary studies into a rehabilitation program - decision affirmed
Legislation
Safety Rehabilitation and Compensation Act 1988 (the Act) ss 36, 37, 38Administrative Appeals Tribunal Act 1975 (the AAT Act)
Cases
Department of Defence v Fox [1997] 3 FCA, 24 AAR 171
Re Fox and Department of Defence (1995) 40 ALD 614
Re Smith and Comcare [2004] AATA 932
Hull and Australian Postal Corporation [2013] AATA 635Secondary Materials
Guidelines for Rehabilitation Authorities 2012 (F2012L01121)
REASONS FOR DECISION
Miss E A Shanahan, Member
A Burke, Member
K Parker, Member19 May 2017
This application has been made by Ms Marie-Luise Huber who is an employee of IP Australia. IP Australia is a Commonwealth Government agency that administers intellectual property (IP) rights and legislation relating to patents, trademarks, designs and plant breeder's rights.
Ms Huber sustained compensable injuries under the Act as listed in paragraph [28] of this decision.
On 24 July 2015 IP Australia determined under s 37(1)[1] that Ms Huber should undertake an altered[2] rehabilitation program between 23 July 2015 and 23 January 2016[3] (the Program Period), comprising medical treatment, occupational therapy and job seeking (IP Australia’s Determination).
[1] Unless otherwise stated, a reference to a section in these Reasons for Decision is a reference to a section of the Safety Rehabilitation and Compensation Act 1988.
[2] An earlier determination was made by IP Australia on 5 November 2014 under s 37(1) to the effect that Ms Huber should undertake a rehabilitation program, which was subsequently altered by IP Australia a number of times (see Annexure B), including on 24 July 2015.
[3] There appears to be a typographical error in the Rehabilitation Program Alternation. The end date for the program is stated as “23/01/2015”, however, it is evident from later alterations to the program that this was meant to be a reference to the end date of “23/01/2016”.
Ms Huber sought a variation to this rehabilitation program to include a three-year full time postgraduate tertiary course of study, specifically, a Juris Doctor at La Trobe University and that the costs of doing so, including all fees, HECS payments and study texts and materials, be payable by IP Australia.[4] Ms Huber had applied for and been accepted into this course and it was due to commence in about March 2017.
[4] Refer paragraph [28(a)] of the Applicant’s Statement of Facts, Issues and Contentions dated 26 April 2016.
IP Australia did not consider it appropriate that the rehabilitation program include this tertiary course of study.
Ms Huber requested reconsideration by Comcare of IP Australia’s Determination about the rehabilitation program under s 38(4). Comcare reconsidered the Determination on 15 October 2015 under s 38(4) (Comcare’s Decision) and affirmed IP’s Australia’s Determination. Subsequently, Ms Huber sought a review of Comcare’s Decision by this Tribunal.
For the reasons set out below, the Tribunal affirms Comcare’s Decision. It considers it appropriate that Ms Huber was required to undertake the rehabilitation program as devised, which focuses on job seeking and medical treatment and excludes the tertiary course of studies as preferred by Ms Huber.
THE DECISION UNDER REVIEW
On 20 October 2015 Ms Huber lodged with the Tribunal an application for review of Comcare’s Decision affirming IP Australia’s Determination (the Application). In the rehabilitation program alteration document, the goal of the program was stated by IP Australia to be returning to work with “same employer, different duties”. However, it was stated in IP Australia’s s 37(1) determination letter to Ms Huber that the goal was “similar job/new employer or new job/new employer” because of the medical advice provided and because there were “no alternative and suitable jobs for [Ms Huber] within IP Australia”.
Section 37(1) provides that the rehabilitation authority[5], in this case, IP Australia, may make a determination that an employee, who has suffered an injury resulting in an incapacity for work or impairment, undertakes a rehabilitation program. Section 4(1) makes it clear that a “rehabilitation program” includes “medical, dental, psychiatric and hospital services (whether on an in-patient or out-patient basis), physical training and exercise, physiotherapy, occupational therapy and vocational training”.
[5] “Rehabilitation authority” is defined in s 4(1) as the principal officer of the employing agency.
Section 34(1) of the AAT Act provides that the Tribunal may, for the purpose of reviewing a decision, exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision (in this case being Comcare).
In response to this Application, Comcare contended that the rehabilitation program as devised was appropriate. Comcare sought affirmation of its decision to affirm IP Australia’s Determination and does not accept that it should be varied. Comcare contended that:
(a)the Tribunal should find that it is appropriate, having regard to the factors set out in s 37(3), that any variation to the rehabilitation program should not include the provision of study by Ms Huber for the Juris Doctor degree[6]; and
(b)when Comcare made its decision, it had regard to the factors set out in s 37(3).
[6] Refer Part IV of Comcare’s Statement.
HEARING, WITNESSES AND DOCUMENTARY MATERIALS TENDERED
Ms Huber and Comcare each filed a Statement of Facts, Issues and Contentions. The documents tendered as evidence at the hearing (including the documents lodged pursuant to s 37 of the AAT Act (“T-documents”)) are listed in Annexure A.
Ms Huber tendered a witness statement dated 28 April 2016 (Exhibit “A1”) (Ms Huber’s Statement) and gave oral evidence at the hearing. Ms Huber’s treating doctor, Dr Mark Cabouret, who described himself as a “medically-qualified psychotherapist” also gave oral evidence at the hearing. Dr Cabouret gave evidence that while he is medically-qualified, he has no post-graduate qualifications in psychiatry or psychotherapy. He said he has treated Ms Huber since 1998.
Ms Jenny Henderson from Dupont & Associates filed a Statement (Exhibit “R2”) (Ms Henderson’s Statement) and was called by Comcare to give oral evidence at the hearing. Ms Henderson is a Contract Case Manager engaged by IP Australia to manage Ms Huber’s case.
Dr Kipling Walker, Consultant Psychiatrist, who undertook an independent medical examination of Ms Huber at the request of Comcare on 27 June 2016, was also called to give oral evidence by telephone at the hearing.
BACKGROUND
Ms Huber is a 52 year-old single woman who completed a Bachelor of Science degree majoring in Chemistry in 1988. She had been diagnosed with Bipolar Disorder Type 2 at age 18. She has had ongoing psychiatric treatment in the form of psychotherapy and medication since diagnosis with overall good control and only occasional exacerbations of the negative i.e. depressive features of this disorder.
Following graduation Ms Huber was employed by CSIRO and from mid-1991 to September 1992 was seconded to ICI Research Group. In 1993 she joined a private company as a trainee patent attorney and translator. Ms Huber is of German origin, has Goethe Institute training and has translated scientific works and correspondence from German to English and vice versa. Her private company, Babel Translations remains active. The patent attorney firm Phillips Ormonde Fitzpatrick required her to undertake study in nine intellectual property law subjects in order to qualify as a patent attorney. By September 1999 she had completed six subjects.
Ms Huber commenced employment with IP Australia on 7 February 2005 on a full-time basis as an Australian Public Service (APS) officer at the APS6 level. Her substantive role at IP Australia was as an APS6 level “Examiner of Patents”.
In 2007 Ms Huber, with the assistance of IP Australia, commenced a Graduate Diploma in Intellectual Property Law through Melbourne University and completed this Diploma at the University of Technology, Sydney in 2008. She was registered as a Patent Attorney on 19 January 2009.
Ms Huber continued to work in Canberra and was then out-posted, working from her home in Melbourne.
In December 2012 she first noted pain in both wrists, more severe in the left than the right. She underwent appropriate investigation and was diagnosed with left de Quervain’s disease (tenovaginitis of the extensor pollicis brevis and abductor pollicis longus tendons), a very small left wrist ganglion and right epicondylitis (tennis elbow). Surgical release of the de Quervain’s tenovaginitis is said to have been very successful; the ganglion is too small to be aspirated or injected with cortisone and the epicondylitis has been reported as having fully resolved following an intra-articular and tendon steroid injection in 2013. Ms Huber continues to experience left wrist pain and has recently completed a pain management course.
In Ms Huber’s Statement, she stated:
“The work of a Patents Examiner is to review applications for patents with a detailed and critical eye. The applications are quite detailed and run to multiple pages. My job is to write a detailed report on the application. The whole of my working day was devoted to the reading, assessing of the application and then report writing. All my reading was screen-based. All my report writing and form filling was by keying in details in multiple electronic data fields on a dedicated computer system. Since June 2012, IP Australia changed the systems for report writing and I did not write reports using Microsoft Word or similar word processing packages.”
Between 1 July 2013 and 24 July 2015, Ms Huber was either working modified hours and/or restricted duties under a return to work plan or was unfit for work on account of the injuries for which s 14 liability has been accepted.
In June 2015 IP Australia terminated the out-posting agreement and on 20 July 2015 in place of that agreement, Ms Huber was scheduled to attend for restricted duties and modified hours of work at the office of IP Australia.
On 24 July 2015 Ms Huber reported for duties at IP Australia’s Melbourne office. Due to continued IT difficulties she encountered which were unable to be resolved on that day, Ms Huber was permitted to leave the workplace and has not performed any duties for IP Australia since this time.
Ms Huber is still employed by IP Australia and receives weekly workers’ compensation payments equivalent to 75% of her pre-injury income in accordance with s 19.
Ms Huber’s injuries since 2013
Ms Huber and Comcare both accept, for the purpose of this Application, that Ms Huber has the following compensable injuries for which claims have been made and accepted by IP Australia on the following dates:
(a)de Quervains tenosynovitis (left wrist) - date of injury 22 January 2013;
(b)lateral epicondylitis (right elbow) - date of injury 15 July 2013;
(c)ganglion (left wrist) - date of injury 12 June 2014; and
(d)aggravation of pre-existing Bipolar Disorder type 2 - date of injury 27 October 2014.
MEDICAL EVIDENCE BEFORE THE TRIBUNAL
Dr Cabouret
Dr Cabouret in his report dated 24 July 2015, opined that Ms Huber had a capacity to engage in employment and was keen to do so “if only given the necessary IT support which would have enabled her to recommence her work. Throughout her period of disablement, the only barrier to her return to work in her capacity of an APS6 examiner of patents has been the lack of success that her employer has had in providing the necessary IT assistance”.
At the hearing, Dr Cabouret was asked the following question: “If she [Ms Huber] doesn’t undertake the Juris Doctor, will that have an adverse psychological effect on her?” to which he answered, after an extraordinarily lengthy pause, that “there was not a simple answer and there are a number of aspects to it” and later he stated that “yes, I think it would have a deleterious effect”.
A copy of Dr Cabouret’s letter dated 16 February 2006 to the Patent Attorneys Professional Standards Board about Ms Huber was tendered into evidence (Exhibit “R5”). The letter was sent in relation to Ms Huber’s application at that time to complete her studies which would lead to registration as a Patent Attorney. Dr Cabouret was cross-examined as to whether Ms Huber had been unable to continue her studies at that point because she had become unstable and depressed, to which Dr Cabouret responded “Yes, there were delays in her getting her final qualification”. In the letter, Dr Cabouret explained to the Board that in his medical opinion, Ms Huber was in a position to complete her outstanding subjects.
Dr Cabouret was cross-examined about whether it was his suggestion that Ms Huber pursue legal studies. He did not answer directly but instead stated that “it arose in conversation”. When questioned about Ms Huber undertaking alternative duties in “research”, Dr Cabouret stated that “she can do research but it wasn’t offered” and later he stated, “I think it would be attractive but not necessarily comparable”.
Dr Cabouret was asked for his opinion about the effect on Ms Huber if she were unable to gain employment after she had completed a Juris Doctor, to which he stated “obviously not the ideal but she would accept it philosophically – if she embarks upon legal degree qualifications, she will be satisfied that she has done the very best”.
On cross-examination, Dr Cabouret was taken to a statement made in his letter to the Tribunal dated 19 February 2016 (Exhibit “R3”) on page 4:
“Ms Huber is understandably concerned that job trials will “brand me as disabled. Why should I be working in a disabled capacity when I have a psychological need to maintain parity with the way I was working prior to injury?” Retraining would lead to a job which relates to her capabilities rather than adapt to her present disabilities. Retraining is necessary to broaden her skills and restore capability and provide access to work of a type for which she was trained but, given the limitations of the supports available to her, caused her to become injured.”
Dr Cabouret was asked whether Ms Huber was interested in work trials to which he answered “yes, she was”. Dr Cabouret stated that “Ms Huber was interested in a work trial if she would recover a position of the same standing”. Dr Cabouret gave evidence that “psychiatrically Ms Huber was fit for full-time work”.
Dr Anthony Sheehan – psychiatrist
Dr Anthony Sheehan, Consultant Psychiatrist, opined that Ms Huber was capable of returning to work as a Patent Examiner in a reduced capacity. He said there were no specific restrictions from a psychiatric perspective. He recommended a return to work initially of two hours, two days per week with gradual increases up to two hours, five days per week with further increases depending on Ms Huber’s ability to manage at a physical level and also stabilisation of her sleep pattern and lowered mood.
In Dr Sheehan’s later report dated 24 August 2015, he stated that Ms Huber told him: “I need to be working; I need to find something doesn’t involve high-frequency computer use”. Although in this report he also stated that she had told him that she had some sense of relief when she was told she was relieved from her duties at IP Australia’s Melbourne office on 24 July following the IT issues she experienced.
Dr Sheehan assessed Ms Huber’s capacity for return to work and vocational rehabilitation as follows:
“Based on her presentation today [18 August 2015] Ms Huber does not appear to have the capacity at this time and she remains vulnerable with some emotional liability and requires further psychiatric treatment to stabilise her condition. I am hopeful that when appropriate employment has been obtained and that with further support from her treating practitioner that she should be able to return to suitable duties within the next 6 to 12 weeks (p9)”
Dr Kipling Walker - psychiatrist
Dr Kipling Walker, Forensic Psychiatrist, undertook a medical examination of Ms Walker on 27 June 2016. In his report (Exhibit “R10”), Dr Walker opined that Ms Huber was fit to participate in a rehabilitation program (Exhibit R10, p17). Further, he opined that “long-term absence from work is known to prolong and aggravate psychiatric symptoms” and that “Ms Huber’s mood is likely to deteriorate with more time off work”. Dr Walker also made the following observation of Ms Huber (at p 16 and 17):
“Ms Huber appears to have reported different symptoms to Dr Hwang and me on 27 June 2016. She did not tell me about back pain. She told me that she could not use the foot mouse because “they confiscated it, then returned it without the mousepad”. She told me that she was unfit for full-time work, but told Dr Wang that she was fit to work up to 4 hours per day, four days per week because she attended a course earlier this year at these hours. She did not tell me of that course. She told me she had continuous pain around the left thumb area of her left wrist into her thumb, index finger, and on the back of her wrist. She told Dr Hwang that in her left wrist, she had “minimal discomfort at rest and sometimes she is pain-free”.
In Dr Walker’s report, he also stated:
“Ms Huber’s mood is likely to deteriorate with more time off work. I respectfully suggest that Dr Cabouret encourages her to consider a return to work trial in another government agency. I am concerned that Ms Huber may have unwittingly become dependent on Dr Cabouret. I am confident that Dr Cabouret treats her to the best of his ability. Doctors should advocate for patients (p19).
...Ms Huber’s employment does not continue to contribute to her psychological condition. She is frustrated with the progression of her rehabilitation, and with Comcare declining to pay for her to study a Juris Doctor. Frustration is not a psychiatric symptom (p22).”
At the hearing, Dr Walker gave evidence that he agreed with Dr Cabouret that Ms Huber had Bipolar Disorder Type 2. Dr Walker accepted that Ms Huber had obsessive-compulsive traits and not an Obsessive Compulsive Disorder but did not agree with Dr Cabouret that Ms Huber had a stress-related disorder. He did not think Ms Huber still had an exacerbation of her Bipolar Disorder. Dr Walker said that when he examined Ms Huber, there were no signs of depression and that she remained attentive and was able to give carefully considered answers to questions. He said she was “psychiatrically fit for full-time work”. Dr Walker clarified that where he referred to Ms Huber’s depression in his medical report, he was referring to symptoms, rather than a diagnosis.
Dr Walker gave evidence, in effect, that Bipolar Disorder Type 2 was characterised by relapses and that one-third of patients would have normal work and study between episodes. Dr Walker stated: “Hopefully Ms Huber won’t have another episode and treatment reduces the likelihood of this, but the condition can recur regardless of whether people are taking their medication. The rate of recurrence is much higher with those who “fiddle with their pills”. Medication doesn’t stop the recurrence - it softens the blow”. Although, Dr Walker stated “I would be surprised if Ms Huber did not comply with medication as prescribed”.
Dr Ben Cheesman – occupational physician
Dr Ben Cheesman, Occupational Physician, conducted a medical examination of Ms Huber on 15 April 2015.[7] Dr Cheesman diagnosed Ms Huber with left de Quervain’s tenosynovitis, right lateral epicondylitis (or tennis elbow) and a left scapho-lunate ganglion.
[7] Dr Cheesman was requested by IP Australia to undertake a s 36 assessment of Ms Huber to assess her capacity for rehabilitation, prior to it making its determination under s 37(1).
In his medical reports dated 27 April 2015 and 6 May 2015, Dr Cheesman opined that the goal for Ms Huber to return to suitable employment should be “same duties and role in the same workplace” and while a return to full-time work in the long term should remain a goal, Ms Huber should not progress to a graduated return to work until “the current psychological concerns have been addressed”. He also opined that Ms Huber should continue to work two hours a day and that frequent keyboarding activities were not recommended.
Dr Tim Hwang – occupational physician
Dr Hwang saw Ms Huber on 27 June 2016. In his reports dated 11 July 2016 (Exhibit “R6”), Mr Hwang stated:
“Ms Huber describes that from a day-to-day point of view it is her left wrist that troubles her. Upon closer questioning as well as during examination, it is noted that her symptoms affect her in terms of the dorsum of the wrist joint itself as well as the radial aspect of the hand around the first and second metacarpals. She describes minimal discomfort at rest and sometimes she is pain free (p4).”
Rehabilitation programs for Ms Huber & Ms Huber’s evidence
Since Ms Huber has sustained the compensable injuries referred to above, IP Australia, as the relevant rehabilitation authority, has sought to meet its obligations under s 40 by:
(a)engaging a number of rehabilitation providers to assist with ongoing rehabilitation activities concerning Ms Huber, including the development of specific return to work plans and vocational assessments;
(b)arranging for a number of s 36 rehabilitation capacity assessments to be conducted and written reports issued; and
(c)making a number of s 37(1) determinations that Ms Huber should undertake various rehabilitation programs or successive alterations to those programs.
Annexure B sets out a table summarising some of the key rehabilitation activities which are relevant to Ms Huber’s Application.
Additional detail about the history of events surrounding IP Australia’s Determination is outlined below.
Between April and July 2015, IP Australia arranged for various doctors to assess Ms Huber’s capacity for rehabilitation.
On 22 July 2015 a telephone case conference took place and was attended by Comcare and IP Australia (rehabilitation case managers at that time: Rachel Graf and Kylie Grady). Of relevance, Comcare stated in the minutes of that meeting, that:
(a)Dr Sheehan’s supplementary report and outcome of Ms Huber’s return to work at IP Australia’s Melbourne office on 20 July 2015 was to provide recommendations on the appropriate next steps in consideration of the “RTW hierarchy”;
(b)consideration was given at this meeting to the proposal by Ms Huber that she undertake tertiary studies; and
(c)it was decided that IP Australia would consider pain management treatment and this would be discussed with Ms Huber’s general practitioner.
On 24 July 2015 Ms Huber sent an email to Comcare, copied into IP Australia, requesting a case conference and expressing concerns about her attempted return to work at IP Australia’s Melbourne office given the technical difficulties she encountered. Ms Huber’s email also asserted that IP Australia had failed, and was continuing to fail to meet its duty of care to her and that she was “angry”. Ms Huber stated that “this bungling had to stop”.
Comcare replied to Ms Huber by email on 24 July 2015 advising that a case conference between Comcare and IP Australia had taken place on 22 July 2015 and that “a revised orientation is currently being addressed”.
Subsequently, IP Australia sent Ms Huber a letter on 24 July 2015, described as “Response to Section 36 Medical Examination/provision of rehabilitation program (section 37)”. The respondent submits that it forms part of IP Australia’s Determination. It advised Ms Huber that the new goal would be “similar job/new employer or new job/new employer” and that IP Australia would assist Ms Huber to obtain employment with a new agency/department. In the covering email , IP Australia outlined the next steps which included:
(a)meeting with Ms Huber to discuss her capacity for job trials and job seeking and to prepare a labour market analysis report; and
(b)sourcing job trials for Ms Huber and working with her in job seeking activities – Konekt would submit an amended s 37 plan to Ms Huber to incorporate those job seeking activities.
Ms Huber was advised in the above email that she would not be required to go to IP Australia’s Melbourne office and that job seeking activities would be conducted at the premises of Konekt, with assistance to be provided to Ms Huber to perform any repetitive computer tasks.
IP Australia emailed a rehabilitation program alteration to Ms Huber later on 24 July 2015, which the respondent submitted was the remaining part of IP Australia’s Determination. The final goal in the program was stated as: “To return to goal(sic) work goal for Ms Huber has changed from Same Employer, Modified Duties to Same Employer, Different Duties. The rehabilitation plan has been amended accordingly.” The altered rehabilitation program stated that “work trials” would be included as one of the activities.
Ms Huber was invited to provide input and feedback and requested to sign the rehabilitation program alteration and return it to Konekt. She gave evidence at the hearing that she signed the rehabilitation program alteration.
In Ms Huber’s witness statement (Exhibit “A1”), she gave the following evidence:
“[27] - I last worked at IP Australia on 24 July 2015. I was sent home without any further work. On that day I was told by the Rehabilitation Case Manager at IP Australia that my employer was looking for a similar or new job with a different employer. I was also told that job seeking activities would be conducted at Konekt, my then rehabilitation provider.
[28] - I maintained contact with the rehabilitation case manager, Rachel Graf, over the telephone for weekly “meetings”. I cooperated to the extent that I was needed in the process but I also considered that retraining was probably the only way I could ever get useful employment.
…[30] - I myself have made about twelve applications for positions as a patent attorney without success. Seven of those positions were in technical fields other than chemistry in which I have expertise. One required a Chemistry PhD qualification and three were for training positions.
[31] Mr Suggate, an external rehabilitation provider assisted me in making an application to a role as Comcare Inspector. However, he also recommended completely unsuitable jobs such as Visa and Border Protection Officer at Nauru and Manus Island.
[32] I have not received a single job offer.
…[34] I have applied for admission to the Juris Doctor program at La Trobe University so that I may retrain as a lawyer.
…[37] I am now 52 years of age with a long background in a highly technical scientific and patent attorney role. I do not believe that I can move into any other employment without building on the expertise I already have with a legal qualification. I have already demonstrated a capacity to study law and have a Graduate Diploma in Intellectual Property Law. I maintain that obtaining a Juris Doctor degree coupled with my experience in Patent Attorney work is the only realistic way to return to productive work. If I cannot do this I am throwing away the experience and qualifications I have spent my working life to develop.
…[42] The method currently adopted by the rehabilitation authority at present is to press me into lesser skilled areas, even in appropriate jobs, which have little potential to result in employment, resulting in increased frustration. This has an adverse psychological effect on me, as is apparent from my breakdown and admission to Delmont Private Hospital”.
At the hearing, Ms Huber gave evidence that she had made enquiries of La Trobe University about the Juris Doctor course. When asked whether the annual course fees were $35,000 per year, she responded “About that”. When Ms Huber was asked whether she was aware of the amount of hours in each semester required to complete the course, she answered “on the lecturers’ estimate, it will take approximately 12 hours per subject or 40 hours per week”.
Ms Huber also gave evidence about the disability assistance available at La Trobe University. Ms Huber said she was informed by the Senior Disability Adviser at La Trobe University that they would provide hard copies of course documentation and there were facilities for the use of Dragon voice activated software. Ms Huber also gave evidence that she would get credit for some of the law subjects she had completed.
Ms Huber claimed that the aggravation of her pre-existing Bipolar Disorder Type 2 resulted from the lack of progress of the return to work process following her physical compensable injuries; communication issues with IP Australia; and ongoing frustration experienced when attempting to work around her physical restrictions by using voice recognition software provided by IP Australia (namely Dragon). While she was able to use Dragon on her computer at home for voice activated typing within Word documents, she was unable to use Dragon to do her job at IP Australia, because she was required to draft reports within templates embedded into IP Australia’s own system. This system was not compatible with the Dragon software.
Ms Huber gave evidence that this caused her intense frustration due to the numerous calls she had to make to the IT service desk and to other staff to try to get the problem resolved and despite those efforts, her connection kept dropping out. Ms Henderson gave evidence that while some improvements had been made, the problems with the interface between the two software programs referred to above, still remained as at the date of the hearing and those issues were unlikely to be resolved by IP Australia in the foreseeable future.
Ms Jennifer Henderson – contract case manager
In Ms Henderson’s Statement, Ms Henderson stated that she was engaged by IP Australia in December 2015, toward the end of the Program Period, as a Contract Case Manager to provide case management services in relation to Ms Huber. She stated that: “Ms Huber was concerned that a work trial would involve taking on a job of lesser status. I believe she may have said that she didn’t want to do work that was ‘beneath’ her. We talked about the idea that she would be placed in suitable duties, and that she would be doing work using her skills and experience but this work would not necessarily be as a patent attorney, and would likely be at her substantive level, APS6, and not higher”.
When giving oral evidence at the hearing, Ms Henderson stated: “Ms Huber clearly said she didn’t want to do work other than as the same she did, in terms of status. She didn’t want to be left in the mail room pushing a trolley. We said we would source something as close as possible to her interests. She clearly said she was a patent attorney and that is what she wanted to do. Undertaking further study would enable her to continue her career”.
Ms Henderson gave evidence at the hearing that in reading Ms Huber’s resume it was evident that she had very good transferable skills in a range of jobs. Otherwise, much of Ms Henderson’s evidence in her witness statement and at the hearing related to the process of developing the successor rehabilitation program (to the one under consideration as part of this Application), and for that reason was not relevant for the purpose of this decision.
CONSIDERATION
Legislative framework
Where an employee suffers an injury resulting in an incapacity for work, or impairment, the relevant rehabilitation authority has discretion under s 36(1) to arrange for an assessment of the employee’s capability to undertake a rehabilitation program. Alternatively, the employee may require the rehabilitation authority do so by making a written request. The assessment is undertaken by a legally qualified medical practitioner or a suitably qualified practitioner or a panel comprising both, in each case, as nominated by the rehabilitation authority.[8]
[8] Refer s 36(2).
When a determination is made under s 37(1), s 37(3) imposes a mandatory requirement on the rehabilitation authority to “have regard to” each of the factors set out in s 37(3)(a) to (h), which includes, under s 37(3)(a), a written assessment given under s 36(6).
Section 41 allows for guidelines to be issued by Comcare in relation to the performance and exercise by a rehabilitation authority of their functions and powers under Part III of the SRC Act. Rehabilitation authorities must comply with any such guidelines. Relevantly, Comcare registered guidelines issued under s 41 on 30 May 2012 entitled “Guidelines for Rehabilitation Authorities 2012 (F2012L01121) (Guidelines).[9]
[9] >
Paragraph 23 of the Guidelines provides as follows:
“In arranging a rehabilitation program [including a return to work plan] the case manager should be aware that the purpose of rehabilitation is to deliver activities and services that:
(a)assist an employee to be maintained at or return to work in accordance with the return to work hierarchy; and/or
(b)maintain or improve the performance of activities of daily living.”
The aim of a rehabilitation program under s 37 was regarded by O’Loughlin J in the Federal Court of Australia as “restoring an injured individual to their fullest physical, psychological, social and vocational capabilities” - Re Fox and Department of Defence (1995) 40 ALD 614 at 620. In Hull and Australian Postal Corporation [2013] AATA 635 at paragraph [166] Deputy President Forgie of this Tribunal observed that “it is clear that a rehabilitation program is intended to restore the injured employee’s capacities”. Normally, it is not appropriate to look at the employee’s secondary or future goals - Department of Defence v Fox (1997) 24 AAR 171 at 177.
Under s 40 of the SRC Act, IP Australia has an obligation to take all reasonable steps to provide Ms Huber with suitable employment or to assist her to find such employment where Ms Huber “is undertaking, or has completed, a rehabilitation program”.
“Suitable employment” is defined in s 4(1) of the SRC Act as follows:
“Suitable employment, in relation to an employee who has suffered an injury in respect of which compensation is payable under this Act, means:
(a)in the case of an employee who was a permanent employee of the Commonwealth or a licensee on the day on which he or she was injured and who continues to be so employed - employment by the Commonwealth or the licensed corporation, as the case may be in work for which the employee is suited having regard to:
(i) the employee’s age, experience, training, language and other skills;
(ii) the employee’s suitability for rehabilitation and vocational retraining;
(iii) where the employment is available in a place that would require the employee to change his or her place of residence - whether it is reasonable to expect the employee to change his or her place of residence; and
(iv) any other relevant matter; and
(b)in any other case - any employment (including self-employment), having regard to the matters specified in subparagraphs (a)(i), (ii), (iii) and (iv).”
Given the context of the regime within which s 37(1) sits, the Tribunal considers that a rehabilitation program should be designed to restore the employee to a position where ultimately, they are able to take up either their pre-existing duties or if this is not possible, suitable employment as defined in s 40(1), such that the rehabilitation authority may meet its obligations to the employee under s 40. It has considered this Application with this objective in mind.
Section 37(3) factors
Section 38 of the SRC Act makes it clear that the factors set out in s 37(3)(a) to (h) must be considered when determining whether an employee is to undertake a rehabilitation program under s 37(1).
Those factors include:
(a)any written assessment given under s 36(8);
(b)any reduction in the future liability to pay compensation if the program is undertaken;
(c)the cost of the program;
(d)any improvement in the employee’s opportunity to be employed after completing the program;
(e)the likely psychological effect on the employee of not providing the program;
(f)the employee’s attitude to the program;
(g)the relative merits of any alternative and appropriate rehabilitation program; and
(h)any other relevant matter.
The Tribunal has set out below its consideration of both the rehabilitation program as devised by IP Australia and also the rehabilitation program as preferred by Ms Huber, against each of those factors.
A. Any written assessment given under s 36(8)
Dr Cheesman’s s 36(8) written assessments, as set out in more detail above in paragraphs [48] and [49], provided support for Ms Huber returning to the same job with the same employer (albeit on restricted hours).
The Tribunal has also considered other medical opinions tendered into evidence in relation to Ms Huber’s condition and her capacity to undertake the rehabilitation program as devised. The medical evidence in relation to her physical condition consistently indicated that she should avoid prolonged typing or use of a computer mouse. The medical evidence described above in paragraphs [29] to [50] did not suggest that there were any psychiatric restrictions on Ms Huber with respect to her returning to work in the same role, provided the IT problems were able to be fixed or if this was not possible, to a different role with IP Australia, a different Commonwealth agency or department or a different employer.
Further to his evidence as discussed in paragraphs [41] to [43], Dr Sheehan’s medical reports provided support for Ms Huber having a capacity during the Program Period to engage in activities designed to return her to work either in a new or similar job at IP Australia; or if that was not possible, to a new job with a new employer.
Dr Cabouret’s evidence was broadly consistent with the views of Dr Sheehan, although, he did not consider Ms Huber fit to undertake the same job, unless the IT issues which occurred previously were able to be successfully resolved. Dr Cabouret considered that Ms Huber had the capacity to return to a new job with a new employer.
In conclusion, the Tribunal considers that the medical opinions provided by Dr Cheesman (and the other medical specialists referred to above) support the decision made by Comcare to require Ms Huber to undertake a rehabilitation program as devised, which focussed at that stage on getting Ms Huber “job ready” and to commence job seeking to identify a new role for Ms Huber.
The medical evidence did not directly address Ms Huber’s capacity to undertake a Juris Doctor degree. Comcare contended there were serious doubts about Ms Huber’s capacity to do so.
Further to Dr Walker’s evidence regarding a possible relapse of Ms Huber’s psychiatric condition (see paragraph [47]), the Tribunal finds that while there may be an ongoing risk of relapse, being a characteristic of Ms Huber’s condition, this risk would seem to be low or contained with respect to Ms Huber, provided she continued to receive appropriate medical treatment by a psychiatrist over the period of a Juris Doctor course, were she to embark upon it. In that regard, evidence was given that Ms Huber had more recently been treated by a new psychiatrist, David Toffler, on about six occasions. The Tribunal also accepts the evidence of Dr Walker that Ms Huber is unlikely to be non-compliant with her medications so the risk of relapse is reduced on account of that finding.
In conclusion, the Tribunal is not satisfied that there is a sufficient evidentiary basis to doubt that Ms Huber would be capable of completing a Juris Doctor were she to embark up on this program.
B. Any reduction in the future liability to pay compensation if program is undertaken
Ms Huber contended, in effect, that the program as devised would not reduce future liability to pay compensation because of her unsuccessful recent job seeking experiences. Ms Huber attributed this to the nature of the confined labour market in the highly specialised area of patent attorney work for which she had experience and qualifications (i.e. Chemical), together with her injuries. Ms Huber contended that further training in law (specifically a Juris Doctor degree), was the only probable method of her obtaining future employment.
Comcare on the other hand contended that a rehabilitation program comprising the Juris Doctor degree, would not reduce but instead increase liability for future compensation for the following reasons:
(a)if Ms Huber were to complete the Juris Doctor she would finish the three-year course in around December 2019. If Ms Huber wanted to be admitted to practise as a lawyer, she would also be required to complete supervised legal training over 52 weeks (in a full-time traineeship employment position) or alternatively, a practical legal training course over 30 weeks (necessitating further full-time study). Accordingly, for these periods, Ms Huber would render herself unavailable to take up any offers of suitable employment that might arise;
(b)if Ms Huber did not complete the degree (and further, Comcare raised serious doubts about whether Ms Huber had the capacity to do so), additional time would have been expended (and compensation paid to Ms Huber) without the benefit of an additional qualification at the end of that period.
Dealing with Comcare’s contention set out in paragraph [90(b)] first, the Tribunal is not satisfied on the evidence before it that there were reasons to doubt whether Ms Huber was able to complete the course – see paragraphs [86] to [88]. However, the Tribunal considers that the delay, which would be three years at an absolute minimum, before full time employment could be taken up by Ms Huber in a new position, was significant and Ms Huber would in effect be locked into that program to the exclusion of any job opportunities that may arise.
In paragraph [30] to [32] of Ms Huber’s Statement, she described her private job seeking activities. Ms Huber also tendered evidence at the hearing seeking to document her attempts to seek employment elsewhere (Exhibit “A2”) as set out in detail in Annexure C.
The Tribunal is not satisfied that this evidence demonstrated optimal job vacancy identification by Ms Huber (for instance, the Tribunal notes that three vacancies were for jobs in the APS at an Executive Level Band 1 (EL1) level which is one level beyond that of Ms Huber’s present level of APS6 – see vacancies at (d)(ii), (iii) and (vi) listed in Annexure A. Two vacancies were for jobs in the APS at the Executive Level Band 2 (EL2) level which is two levels above that of Ms Huber’s present level of APS6. Further, the Tribunal notes that all of the vacancies listed in (d) of Annexure A were located in Sydney and that Ms Huber’s home is in Melbourne. Nor was it apparent from the evidence presented that those job seeking initiatives were sufficiently focussed, structured or followed through. Subject to a few exceptions, the evidence tendered by Ms Huber did not include any follow up correspondence with those companies or organisations to show what follow on activities were undertaken in pursuit of those vacancies. Notably, the vacancies pursued by Ms Huber did not include any of the categories of jobs identified in the Labour Market Report.
The Tribunal considers that the process of job seeking to find Ms Huber a position with a new employer with the professional assistance and facilitation of IP Australia’s rehabilitation provider, coupled with the other rehabilitation activities proposed under the rehabilitation program the subject of IP’s Determination, had not been fully exhausted at the commencement of the Program Period (or subsequently for that matter) and should be allowed to run its course. For these reasons, the Tribunal does not accept that Ms Huber undertaking the proposed course of study was likely to reduce future liability for compensation, as Ms Huber contended.
Instead, the Tribunal accepts the contention of Comcare that the rehabilitation program focussed on job seeking was likely to reduce future liability for compensation for the reason contended by Comcare as set out in paragraph [90(a)].
C. The cost of the program
The cost of the rehabilitation program as determined by IP Australia to be undertaken by Ms Huber comprising medical treatment, occupational therapy and job seeking assistance was $10,479.84, plus any fees charged for the medical treatment. Comcare contended, and it was not disputed by the Applicant, that the total course fees (tuition fees alone) for the Juris Doctor course offered at La Trobe University was $98,970.
The Tribunal considers the cost of a program comprising a Juris Doctor degree to be significant and the cost of the rehabilitation program as devised is reasonable. Accordingly, the Tribunal considers this factor weighs in favour of the program as devised, and against the program as preferred by Ms Huber.
D. Any improvement in the employee’s opportunity to be employed after completing the program
In relation to the rehabilitation program as devised, Comcare contended that it would leverage from the strong base of Ms Huber’s existing skills and experience. Comcare contended that any barrier to Ms Huber obtaining suitable employment was not from a lack of skills and qualifications, but rather her injuries.
In support of this contention, Comcare tendered evidence in the form of a Labour Market Report by Konekt dated 2 September 2015 (Labour Market Report) in which four vocational options were identified for Ms Huber – (1) inspector and regulators; (2) legal executive; (3) policy analysis and (4) judicial and other legal professional, nec[10] (patent attorney). For each vocational option, the following information was provided in the report: position description; physical/cognitive requirements; references of position information; training requirements; job availability; employers contacted; remuneration and an opinion as to the suitability of each of the positions.
[10] Nec = not elsewhere classified.
In relation to the rehabilitation program as preferred by Ms Huber, while the Tribunal accepts as a general proposition that the addition of a formal qualification to any employee’s resume may increase their employability, it is not apparent from the evidence presented in this case, that the employability of Ms Huber would necessarily be increased by adding a Juris Doctor to her already comprehensive complement of skills and tertiary qualifications.
The Tribunal finds that Ms Huber has a broad array of transferrable skills and experience and already has good prospects of finding suitable employment. The Tribunal considers that a major obstacle has been the somewhat set views of Ms Huber, as evidenced by comments made by her in paragraphs [28], [37] and [42] of her Statement, about what type of work she was willing to do; whether it be part of a work trial or on an ongoing basis and her pre-determined view that work trials were unlikely to be of any help in her finding suitable ongoing employment.
The Tribunal considers that while Ms Huber had always been careful to be seen as being cooperative to the extent she needed to in relation to the rehabilitation activities, it was apparent to the Tribunal that she had maintained a resistant mindset arising from her view that the program should be devised in the way she preferred it. The Tribunal considers that this has contributed to the slow progress of the efforts made by the rehabilitation providers and IP Australia to rehabilitate Ms Huber and to secure for her suitable employment. Progress had been made to identify potential redeployment options and work trials to which Ms Huber, with the professional assistance of the rehabilitation provider, could have availed herself of, if she had approached these opportunities with the right attitude.
The Tribunal considers that Ms Huber undertaking a rehabilitation program as preferred by Ms Huber would not improve her opportunities for employment following the completion of such a program. It was contended by Ms Huber that by obtaining a Juris Doctor degree, she may be able to “distinguish herself academically” from other persons applying for work as a patent attorney in the private sector, which would improve her prospects of obtaining such employment. Ms Huber also contended that by obtaining this qualification, if she was unable to obtain work as a patent attorney, she would be able to seek job opportunities in the law more generally.
The Tribunal notes that no labour market or other expert evidence was tendered by Ms Huber to support her contentions as set out in the above paragraph. The Tribunal does not otherwise accept these propositions purely on the basis of conjecture. To the contrary, the number of law graduates who are unable to secure employment as lawyers after they graduate is a well-known current trend in the Australian community. On Ms Huber’s own evidence, it seems there are only a small number of job opportunities available as a patent attorney in the private sector for which Ms Huber is qualified (i.e. Chemical), so even if her contention that a Juris Doctor would distinguish her academically from other candidates is valid, the reality is that vacancies do not arise very often in this field.
E. The likely psychological effect on the employee of not providing the program.
In relation to the program as devised, the medical evidence of Dr Cabouret and other psychiatrists who examined Ms Huber consistently reported that Ms Huber was likely to respond most favourably from a psychological perspective, if she was engaged in the same or comparable work within the bounds of her physical limitations, whether at IP Australia or elsewhere.
It would follow then that if a rehabilitation program focussed on getting Ms Huber “job ready” and job seeking was not provided, thereby delaying Ms Huber’s ultimate return to work in suitable duties with a new employer, that the continued uncertainty experienced by Ms Huber as to her future employment is likely to adversely impact upon her psychological and potentially, psychiatric state. For this reason, the Tribunal is satisfied that this weighs in favour of the rehabilitation program as devised.
Conversely, by not providing a program consisting of a Juris Doctor, the Tribunal considers that Ms Huber is likely to be returned to suitable employment much earlier which is likely to have a positive psychological effect on her.
F. The employee’s attitude to the program
In terms of Ms Huber attitude to the respective programs, it was very clear from the evidence and not in contest that Ms Huber viewed the program as devised negatively and the program as preferred by her positively. Ms Huber’s evidence as to her attitude to the rehabilitation program was that it should be reshaped to allow her to engage in a course of study because in Ms Huber’s view was that this was “the only likely way to improve her opportunity to be employed”.[11]
[11] Paragraph [44] of Ms Huber’s Statement.
G. Relative merits of alternative, appropriate programs
A further alternative program focussed on returning Ms Huber to the same or new position at IP Australia was considered and pursued at great length previously, as set out in the detailed history leading up to IP Australia’s Determination as provided in Annexure B. However, it was clear from the evidence of Ms Henderson at the hearing that the IT issues at IP Australia referred to above, up to the current day, had not significantly improved (and relevantly, had remained an issue during the Program Period). On this basis, IP Australia informed Ms Huber that she was not able to return to her pre-injury duties. Nor were there any alternative duties available for her at IP Australia.
The Tribunal accepts that as things stood leading up to and during the Program Period, given the inability of IP Australia to resolve those IT issues which would allow it to accommodate Ms Huber’s physical restrictions, this alternative program did not seem appropriate. This is more so in consideration of the adverse views Ms Huber has expressed to a number of health practitioners about her relationship with some staff at IP Australia, particularly those in the Human Resources department. In a similar vein, when pressed, Comcare’s counsel in closing submissions submitted that a return to work at IP Australia would be difficult because, in effect, Ms Huber had told at least five people at IP Australia that they were “incompetent”.
G. Other relevant matters
The Tribunal has also taken into consideration a number of other matters as set out in the following paragraphs in making its determination about the appropriateness of the rehabilitation program as devised or as preferred by Ms Huber.
Dr Cabouret was provided with a copy of Dr Cheesman’s and Dr Sheehan’s s 36 written assessments, and was invited by IP Australia to provide his medical opinion as to Ms Huber’s capacity for rehabilitation. Dr Cabouret, in his report date 19 June 2015, opined that the goal should be changed to “different duties and role in the same workplace” which would require education and retraining and he suggested that one possibility was for her to train for the qualification of a Juris Doctor.
In cross-examination, Dr Cabouret answered a number of questions about whether he had been involved in the rehabilitation of an employee in the APS before, to which he answered he had not. He was also questioned about his understanding of the difference between work trials and transfers, namely, the role that work trials played within a rehabilitation context to bring a person back to meaningful employment by incremental steps. The Tribunal considers that Dr Cabouret’s answers to those questions conveyed a degree of misconception on his part about the role of work trials. At one point, Dr Cabouret stated in cross-examination that work trials are “surely related to her original work” and “what was on offer didn’t appear to be comparable”. Dr Cabouret was questioned whether he knew what was on offer to Ms Huber to which his reply was “checking passports and security control”. Dr Cabouret was questioned whether there was anything wrong with checking passports to which he replied in the negative, “if it is presented in those terms, as a staged program”.
The Tribunal is satisfied, based on Dr Cabouret’s evidence at the hearing, that at the relevant time when advising Ms Huber in the lead up to IP Australia’s Determination, it is likely that he has misconceived the objective of work trials within the context of a rehabilitation program under Part III of the Act. The Tribunal considers that Dr Cabouret may have inadvertently discouraged Ms Huber from engaging in work trials under the rehabilitation program, when it was inappropriate for him to do so, on the basis of his misconception that they should only be considered by Ms Huber if they related to or were comparable to her former work or which did not identify her as functioning at a lower level.
Did Comcare have regard to each of the factors prescribed in s 37(3)?
The Tribunal is satisfied that Comcare had regard to the factors under s 37(3) when deciding whether to make its decision to affirm IP Australia’s Determination. Specifically:
(a)in relation to the factor under s 37(3)(a), Mr Brenton Skurowski, Review Officer, Comcare (in ) referred to the medical opinions of Dr Cheesman and Dr Sheehan;
(b)in relation to the factors under s 37(3)(b) and 37(3)(d), on page 4 and at the top of page 5 of Comcare’s Decision, Mr Skurowski made detailed references to the Labour Market Report. From this the Tribunal has inferred that Comcare considered the likelihood of returning Ms Huber to an alternate role should the job seeking activities be progressed under the program the subject of IP Australia’s Determination;
(c)in relation to the factor under s 37(3)(c), the costs of the rehabilitation program focussed on job seeking were expressly quoted in the document under consideration by Comcare . The evidence revealed there was a long history of consultation regarding the development of the rehabilitation program and their development along the way, including discussions about the alternative program as proposed by Ms Huber, such that the Tribunal considers regard by Comcare to the issue of costs was implicit in that process;
(d)in relation to the factors under s 37(3)(e) and (f), in Mr Skurowski’s letter dated 15 October 2015 reference was made to Dr Sheehan’s views and Dr Cabouret’s views, and also an acknowledgment in this letter of Ms Huber’s submissions made on 28 September 2015 identifying her concern that no allowance had been made for her to undertake further tertiary studies;
(e)in relation to the factor under s 37(3)(g), the alternative program of tertiary studies as proposed by Ms Huber was in the frame well before Comcare’s Decision and indeed IP Australia’s Determination. Comcare made specific references to this alternative program in its decision. Reference is also made to an alternative program seeking to return Ms Huber to work at IP Australia, however, it was noted that IP Australia had advised that it did not have any suitable alternative role; and
(f)it does not appear to the Tribunal that Comcare failed to have regard to any other relevant matters under s 37(3)(h).
The Tribunal is satisfied that Comcare had regard to the various factors under s 37(3) when making its decision.
Conclusion - The rehabilitation program
The Tribunal considers that a program focussed on getting Ms Huber “job ready” through occupational therapy and work trials, in addition to job seeking activities during the Program Period, was both reasonable and appropriate. The Tribunal was not satisfied that the program preferred by Ms Huber, where she would be held up for at least three years undertaking full time study with no realisable benefit to her prospects of obtaining suitable employment at the end, was appropriate.
The Tribunal considers that the program as devised would have:
(a)allowed for Ms Huber and IP Australia to continue to pursue the opportunities which were previously identified to attempt to secure alternative suitable employment for Ms Huber in consideration of her existing transferrable skills and qualifications;
(b)reduced the future liability to pay compensation to Ms Huber as the Tribunal considers it was likely that if those opportunities were pursued under the program as devised and if Ms Huber had adopted a more flexible and positive attitude to those initiatives, that the program would have succeeded in securing for her such suitable employment within a much reduced time frame than would be the case if a three-year full time course were pursued;
(c)impacted positively on Ms Huber’s psychological condition as the program as devised was likely to return Ms Huber to suitable employment faster than if she had undertaken the tertiary course; and
(d)minimised the costs involved in rehabilitating Ms Huber to meet the objective of returning her to suitable employment, as the cost of the program as devised was at the very least, one-tenth of the cost of supporting Ms Huber completing the Juris Doctor degree.
The Tribunal acknowledges that Ms Huber will dislike undertaking a program that does not include the proposed course of study. However, this position seems to overlook the intended overarching purpose of the implementation of a rehabilitation program under the legislative regime in Part III of the Act, which is to return her to suitable employment.[12] The Tribunal considers that it would be premature for Ms Huber to embark upon the proposed Juris Doctor degree as she had proposed. Firstly, and as mentioned above, the job seeking activities provided under the program had not been fully explored or exhausted. Secondly, if it did become appropriate at some later stage to introduce retraining into the rehabilitation program, it would first be necessary for the relevant rehabilitation provider and Ms Huber to consider the full range of different retraining options, so as to assess them against their likelihood of returning Ms Huber to suitable employment once the retraining course had been completed.
[12] See paragraphs [73] to [81] of these reasons for decision.
For the reasons outlined above in consideration of the factors under s 37(3), the Tribunal concludes that Comcare’s Decision to affirm IP Australia’s Determination was the preferable decision and should be affirmed.
I certify that the preceding 113 (one-hundred and thirteen) paragraphs are a true copy of the reasons for the decision herein of Miss E A Shanahan, Member
...............[sgd]....................
Associate
Dated: 19 May 2017
Date of hearing: 8, 9 & 10 February 2017 Applicant: In person Solicitors for the Applicant: Arnold Thomas & Becker
Counsel for the Applicant: Mr M Carey Solicitors for the Respondent: Australian Government Solicitor
Counsel for the Respondent: Mr J Wallace ANNEXURE A
LIST OF DOCUMENTARY MATERIALS AND EVIDENCE TENDERED AT THE HEARING
A01
Marie-Luise Huber 08/02/2017 No Statement of Marie-Luise Huber dated 28 April 2016.
A02
Marie-Luise Huber 08/02/2017 No Copies of Applications for Various Jobs between 2015 and 2017 (74 pages).
A03
Marie-Luise Huber 08/02/2017 No Letter regarding long service leave from Gemma Smith, IP Australia to Marie-Luise Huber dated 26 August2016.
R01
Comcare 08/02/2017 No T-Documents and Supplementary T-Documents.
R02
Comcare 09/02/2017 No Statement of Ms Jennifer Henderson dated 27 May 2016 and attached documents.
R03
Comcare 09/02/2017 No Report of Dr Mark Cabouret dated 19 February 2016.
R04
Comcare 09/02/2017 No Report of Dr Mark Cabaret dated 24 September 2016.
R05
Comcare 09/02/2017 No Report of Dr Mark Cabaret to Professional Standards Board dated 16 February 2006.
R06
Comcare 09/02/2017 No Report of Dr Tim Hwang to Comcare dated 11 July 2016.
R07
Comcare 09/02/2017 No Report of Dr Tim Hwang to IP Australia dated 11 July 2016.
R08
Comcare 09/02/2017 No Return to Work Plan dated 23 December 2016 and Rehabilitation Program dated 30 November 2016.
R09
Comcare 09/02/2017 No Carfi Progress Report dated 9 January 2017.
R10
Comcare 10/02/2017 No Report of Dr Kipling Walker dated 30 September 2014.
ANNEXURE B
TABLE OF REHABILITATION PROGRAMS, ASSESSMENTS, REPORTS AND OTHER ACTIVITIES BEFORE AND AFTER IP AUSTRALIA’S DETERMINATION
| Date | Event | Provider | Comments |
| 3 September 2013 to 12 August 2014 | Rehabilitation program established for Ms Huber, followed by four subsequent alterations of it. | CRS Australia | This program was closed on 3 September 2014 as a result of CRS Australia winding down its operations. At all times during this program and its alterations, the goal was stated as “Ms Huber to return to work in her pre-injury role as an out-posted (home-based) Patent Examiner for IP Australia performing pre-injury full-time hours”. |
| 15 August 2014 | Initial Needs Assessment (INA) | Injury Treatment Pty Ltd | Following the assessment, an INA report was prepared dated 10 August 2014. The return to work (RTW) goal identified in this report was: “Same Job - Same Employer”. The RTW plan attached to the INA report was signed by IP Australia but not signed by Ms Huber, her supervisor or doctor. |
| 21 October 2014 | Assessment under s 36 completed by Daniela Zugaro in relation to Ms Huber’s capacity to undertake a rehabilitation program. | Konekt | An INA report dated 30 October 2014 was provided to IP Australia with the anticipated long-term RTW goal identified as follows: “For Ms Huber to return to her pre-injury hours (36 hours per week) and pre-injury duties as a Patent Examiner without restriction by mid-2015”. |
| 5 November 2014 | Determination made under s 37(1) by IP Australia that Ms Huber undertakes a rehabilitation program. | Konekt (Daniel Zugaro) | The interim goal was identified as follows: “For Mrs Huber to participate in a graded return to work plan, with hours of work upgraded by 20 minutes per day at this stage”. The final goal was described as follows: “For Ms Huber to return to her pre-injury hours of 36 hours per week, completing modified duties to a level of productivity that can be supported by IP Australia ongoing” (T30 - see also ST10). The program was signed Konekt and IP Australia’s case manage, Debra Williams, but was not signed by Ms or her supervisor from IP Australia. |
| 10 November 2014 | Ms Huber signed a Proposed RTW (Suitable Duties) Plan No.1 (ST11) | Konekt (Daniela Zugaro) | Amended after a GP case conference that took place in early November 2014. |
| 5 December 2014 | A Proposed RTW Suitable Duties Plan No.2 (ST12) was developed. | Konekt (Daniela Zugaro) | |
| 9 December 2014 | RTW progress report dated with proposed RTW plan No.3 (ST13 & ST14). | Konekt (Daniela Zugaro) | (not signed) Goal stated as “To return Ms Huber to her pre-injury hours and role of Patent Examiner at IP Australia (timeframe pending further medical feedback with review by mid 2015).” |
| 11 February 2015 | RTW progress report (ST15) | Konekt (Daniela Zugaro) | Goal stated as “To return Ms Huber to her pre-injury hours and role as a Patent Examiner at IP Australia by July 2015 (timeframe TBC pending further medical feedback).” Refers to discussions with treating physiotherapist, Dr Malliaris, on 9 January 2015 about the idea of Ms Huber working from the Richmond office. |
| 19 February 2015 | A meeting took place on between Ms Huber, her supervisor, Ms Graf, Mr Hearder and Ms Zugaro from Konekt | Konekt | Discussion took place about any potential alternative duties that were either solely phone based or involve a lesser component of keying that Ms Huber could complete while awaiting further upper limb recovery and IT issues on a temporary basis. |
| 18 March 2015 | A rehabilitation program alteration under s 37(1) was signed IP Australia (T30 pp 226-231). | Konekt | In this program Ms Huber’s medical restrictions were stated as “Unfit for duties at present”. The final goal remained as stated in the original rehabilitation plan dated 5 November 2014. The plan was signed by Konekt, but not Ms Huber or Ms Huber’s supervisor. |
| 23 March 2015 | RTW Progress Report | Konekt (Erin Templeton) | [Refer page 2 (ST16 p80) Goal stated as “To return Ms Huber to her pre-injury hours and role as a Patent Examiner at IP Australia by July 2015 (timeframe TBC pending further medical feedback).” |
| 10 April 2015 | Vocational assessment of Ms Huber conducted by Sarayae Manisegaran | Konekt | (report?) |
| 15 April 2015 | An assessment under s 36 of Ms Huber’s capacity to undertake a rehabilitation program was conducted by Dr Ben Cheeseman, Consultant Occupational Physician. | Dr Cheesman submitted medical reports outlining his assessment to IP Australia dated 27 April 2015 and 6 May 2015. Dr Cheesman expressed a view that the goal for the rehabilitation program should remain as “same duties and role in the same workplace”. | |
| 21 April 2015 | RTW progress report | Goal described as follows “The current return to work goal is being determined based on further medical feedback from a recent section 36 assessment and comments from Ms Huber’s treating health practitioners regarding suitable vocational options. The goal of Ms Huber returning to her pre-injury hours and duties as a Patent Examiner at IP Australia may now be unrealistic. A return to an alternative role within Ms Huber’s current transferable skills (either with IP Australia or external organisation) is anticipated to be a more realistic goal. If work capacity and medical status changes in the future, a return to pre-injury role may be considered [see p 90 of ST18]. | |
| 19 April 2015 (signed on 22 April 2015) | Proposed RTW (Suitable Duties) Plan No.4 | Konekt (Daniela Zugaro) | The RTW goal was described as follows: “Ms Huber to participate in reduced hours and alternative duties whilst further IT troubleshooting is occurring. The long term return to work goal is currently under decision and is awaited by a pending independent medical report and further discussions with all parties”. |
| 8 May 2015 | IP Australia made a determination under s 37(1) that Ms Huber continue to undertake a rehabilitation program in respect of her de Quervain’s tenosynovitis (left), lateral epicondylitis (right) and ganglion (left) injuries. | ||
| 11 May 2015 | Rachel Graf of IP Australia signed a rehabilitation program alteration under s 37(1) – (ST19). | Konekt (Daniela Zugaro) | The final goal was altered as follows: “The final goal remains as listed beside (see [X]), but additional time and funding is required to assist Ms Huber in achieving this goal. Consideration for change of goal may be required at a later stage”. |
| 18 May 2015 | Vocational assessment report (ST20). | Konekt (Saranyae Manisegaran, psychologist) | Purpose: to assess Ms Huber’s transferrable skills, to determine viability of potential job options and to determine whether retraining was required for viable job options. |
| 19 May 2015 | An assessment under s 36 of the SRC Act of Ms Huber’s capacity to undertake a rehabilitation program was undertaken by Dr Anthony Sheehan, Consultant Psychiatrist. | Dr Sheehan submitted a medical report to IP Australia on 27 May 2015 outlining his assessment. | |
| 27 May 2015 | IP Australia made a determination under s 37(1) of the SRC Act that the applicant should continue to participate in a rehabilitation plan. | ||
| 28 May 2015 | Proposed return to work (suitable duties) plan no.5 (ST21) | Konekt (Daniela Zugaro (physiotherapist) | The RTW goal was described as “Ms Huber to participate in reduced hours and alternative duties whilst further IT troubleshooting is occurring. A return to pre-condition duties and hours is currently the long term goal but may change with further medical feedback. |
| 24 July 2015 | IP Australia’s Determination | See paragraphs [25] to [31] of these Reasons for Decision for more detail. | |
| 2 September 2015 | Labour Market Report (T26) | Konekt (Brendan Suggate) | 10. Provided to Comcare (T26 p198). The following vocational options were identified in the report: (a) Inspectors and Regulatory Offices ANZSCO Code 5995; (b) Legal Executives ANZSCO Code 5991; (c) Policy Analysis ANZSCO Code 2244; (d) (additional) Judicial and Other Legal Professions Nec (Patent Attorney) ANZSCO Code 2712. |
| 7 September 2015 | Rehabilitation program alteration under s 37(1) | Konekt | 10. The final goal was altered as follows: “The return to work goal for Ms Huber has changed from Same Employer, Modified Duties to [Different?] Employer, Different Duties. The rehabilitation program has been amended accordingly. For Ms Huber to also attend to VoiceX training”. The program states that “work trials” were offered as part of the program. |
| 17 September 2015 | Return to work progress report | Konekt (Thai Nguyen, occupational therapist & Brendan Suggate as the EEO) | 11. The goal was stated as: “For Ms Huber to seek alternate employment within APS”. |
| 19 September 2015 | Treating GP, Dr Ting, certified Ms Huber fit to undertake the role of education aide | Konekt | 12. Restricted hours 2 hours/2 days per week (for temporary period of 6 months) but subsequent letter dated 20 October 2015 certifying her fit to undertake 6.5 hours/2 days per week. |
ANNEXURE C
Ms Huber’s evidence of her job seeking activities
Ms Huber tendered evidence of some of her job seeking activities. They included:
(a)On 23 April 2015, email to Gatehouse Legal Recruiting referring to a telephone conversation that morning and attaching Ms Huber’s curriculum vitae in relation to the position of Senior Associate Patent Attorney (Chemical);
(b)On 11 May 2015, Supreme Executive Pty Ltd, Patent Attorney Job Board, Global Executive Search/Recruitment sent a group email which included Ms Huber advising they were updating their candidate data base, inviting her and others to be kept informed of suitable positions and to provide a copy of her current email;
(c)On 10 August 2015, email to Gatehouse Legal to lodge an application for the position of Chemical Patent Attorney (Senior Associate) as advertised on Seek on 9 August 2015;
(d)On 19 August 2015, email from Human Resources at the Child Abuse Royal Commission thanking Ms Huber for her interest in working with the Commission and providing the “temporary employment register application form” and position descriptions for non-ongoing roles[13] (legal and policy roles) all located at Sydney CBD, including:
[13] All temporary positions for three months, with the opportunity of them being extended and also remuneration amounts were exclusive of superannuation.
(i)Principal Legal Officer/Team Leader (EL2 or equivalent) –- $115,778 - $131,869;
(ii)Senior Legal Officer (EL1 or equivalent) - $95,154 - $115,778;
(iii)Commissioner Officer (EL1 or equivalent) - $95,154 - $115,778;
(iv)Legal Officer (APS5/6 or equivalent) - $69,056 to $87,601;
(v)Policy Officer (APS5/6 or equivalent) - $69,056 - $87,601;
(vi)Senior Policy Officer (EL1 or equivalent) - $95,154 - $115,778; and
(vii)Policy Team Leader (EL2 or equivalent) - $115,778 - $131,869;
(e)In August 2015, email exchange with FB Rice for positions “HR52” and “HR54” (unspecified) where Ms Huber was advised that her application would not be progressed as the partners of the Chemistry team had decided to advertise for “a more junior TA role” at that stage;
(f)On 20 October 2015, letter to Griffith Hack seeking an opportunity to discuss how Ms Huber’s skills and experience could meet their requirements and needs;
(g)On 19 February 2016, email (which appears to be automatically generated) from Gatehouse Legal to Ms Huber advising of an opportunity that might interest her – Senior Associate Patent Attorney (Chemistry);
(h)On 30 June 2016, email from RWS Group confirming that a request had been made by Ms Huber for freelance translations from German into English at the rate of AU$33 for 100 words;
(i)On 2 August 2016, email from Ms Huber to Empire Group Careers for the position of “Trade Marks Attorney (1-3 PQE)’ and attaching Ms Huber’s curriculum vitae;
(j)On 5 October 2016, email (appears to be automatically generated) confirming registration to the ACCC’s Consumer Enforcement Employment Register; and
(k)On 15 December 2016, email exchange with Kaleidoscope Recruitment about a “patent attorney role with boutique CBD firm” and referring to Ms Huber having sent in her resume. The email also refers to a telephone discussion proposed to take place on 19 December 2016.
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