Huber and Comcare (Compensation) - [2017] AATA 701

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, Member
K 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, 38
Administrative 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 635
Secondary Materials
Guidelines for Rehabilitation Authorities 2012 (F2012L01121)
REASONS FOR DECISION
Miss E A Shanahan, Member
A Burke, Member
K Parker, Member
19 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Huber and Comcare (Compensation)

Details

AGLC: Huber and Comcare (Compensation) [2017] AATA 701
Case: [2017] AATA 701
Decision Date: 19 May 2017

CaseChat Overview and Summary

This matter concerned an application by Ms Huber for review of a decision by Comcare, which affirmed IP Australia's determination that Ms Huber undertake a rehabilitation program. Ms Huber had suffered several compensable injuries, including de Quervain's tenosynovitis, lateral epicondylitis, a wrist ganglion, and an aggravation of pre-existing Bipolar Disorder Type 2. The dispute centred on the nature and scope of the rehabilitation program to be undertaken by Ms Huber, with Ms Huber preferring a program that included tertiary legal studies (a Juris Doctor degree), while Comcare's devised program focused on job seeking and medical treatment.

The Tribunal was required to determine whether Comcare's decision to affirm IP Australia's determination, requiring Ms Huber to undertake a rehabilitation program focused on job seeking and medical treatment and excluding tertiary study, was appropriate. This involved considering the legislative framework governing rehabilitation programs under the *Safety, Rehabilitation and Compensation Act 1988* (Cth), specifically the factors mandated by section 37(3) of the Act, which include written assessments, potential reduction in future compensation liability, program costs, improved employment opportunities, psychological effects of not providing a program, the employee's attitude, and the merits of alternative programs.

The Tribunal reasoned that the purpose of a rehabilitation program is to restore an injured employee to their fullest physical, psychological, social, and vocational capabilities, typically by returning them to their pre-existing duties or suitable alternative employment. While acknowledging Ms Huber's desire to pursue a Juris Doctor degree, the Tribunal found that the medical evidence, including opinions from Dr Cheesman, Dr Sheehan, and Dr Cabouret, supported a program focused on returning Ms Huber to work, either in a similar role with IP Australia or a new role with a different employer. Although Dr Cabouret indicated that not undertaking the Juris Doctor might have a deleterious psychological effect, he also noted that Ms Huber would philosophically accept it if she had done her best. The Tribunal concluded that the medical opinions did not directly address Ms Huber's capacity to undertake a Juris Doctor, and while there was a risk of relapse of her bipolar disorder, this risk appeared low and contained with appropriate treatment.

Ultimately, the Tribunal affirmed Comcare's decision. It found it appropriate that Ms Huber be required to undertake the rehabilitation program as devised by Comcare, which focused on job seeking and medical treatment, and that the tertiary course of studies preferred by Ms Huber should be excluded from the program.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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.”

Evidence

Evidence Before The Court

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 TRIBUNALDr 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.”

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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) factorsSection 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.