JAMES MENZ and BORDER EXPRESS PTY LTD
[2012] AATA 203
•5 April 2012
[2012] AATA 203
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2011/1613
Re
JAMES MENZ
APPLICANT
And
BORDER EXPRESS PTY LTD
RESPONDENT
DECISION
Tribunal Professor RM Creyke, Senior Member
Date 5 April 2012 Place Canberra The decision under review is set aside.
.......................[sgd].................................................
Professor RM Creyke, Senior Member
CATCHWORDS
COMPENSATION – Commonwealth Employees – shoulder injury at work - related anxiety and depressive disorder - rehabilitation plan - compensation suspended for failure or refusal to comply with plan - whether lawful rehabilitation plan existed – whether reasonable excuse
COURTS AND JUDICIAL SYSTEM – Jurisdiction – Administrative Appeals Tribunal - whether applicant in fact had entitlement for psychological injury – if not, whether actions taken by Border Express to suspend compensation were taken under the Act - principle in Telstra Corporation v Hannaford (2006) 151 FCR 253 – whether Tribunal had jurisdiction - submission not accepted.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 37, 62, 63, 64
CASES
Australian Postal Corporation v Forgie (2003) 130 FCR 279.
Australian Telecommunications Commission v Tzikas (1985) 5 AAR 173
Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 41 FLR 338
Comcare v Hill (1999) 56 ALD 487
Kirkpatrick v Commonwealth (1985) 62 ALR 533
Pascoe v Australian Postal Corporation (2004) 77 ALD 464
Power v Comcare (1998) 89 FCR 514
Re Lovelace and Australian Postal Corporation (AAT 7986, 28 May 1992)
Re Mathey and Australian Telecommunications Commission (AAT 4040, 23 December 1987)
Re Oakes and Comcare (AAT 10495, 26 October 1995)
Re Reddy and Medicare Participation and Review Committee (AAT 9257, 19 January 1994)
Re Secretary, Department of Social Security and Schmidt (AAT 9697, 26 August 1994)
Riddle v Telstra Corporation Ltd (2006) 149 FCR 348
Telstra Corporation Ltd v Hannaford (2006) 151 FCR 253.REASONS FOR DECISION
5 April 2012
Mr James Menz was a linehaul, that is, long distance, truck driver. He suffered a work-related shoulder injury described as a ‘left shoulder injury (tear of supraspinatus and infraspinatus tendon)’ on 3 May 2008 which incapacitated him from working. Liability for the condition was accepted on 9 May 2008.
On 2 December 2010, Mr Menz made a claim for compensation for a secondary psychological condition described as ‘depression,’ arising as a consequence of the injury to his shoulder. On 10 December 2010, liability was accepted for ‘adjustment disorder with depressed and anxious mood,’ secondary to the initial claim.
On 17 March 2011, Border Express Pty Ltd (Border Express), a licensed self-insurer under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act), decided to suspend Mr Menz’s entitlement to compensation, and payments were ceased from 20 March 2011. The ground was that Mr Menz had no ‘reasonable excuse’ under section 37(7) of the Act for not commencing a rehabilitation program on 17 January 2011.
That decision was affirmed on review on 20 April 2011. Mr Menz appealed to the Tribunal on 29 April 2011. The application was heard by the Tribunal on 29 September 2011, 8 November 2011, and 27 January 2012. Further material was provided to the Tribunal on 3 February 2012.
HISTORY
Mr Menz suffered a complete tear to two shoulder tendons following a fall at work on 3 May 2008. He had been a truck driver for 35 years, but after the injury was unable to continue truck driving.
Mr Menz had surgery for his shoulder in August 2008, and again in March 2009. In the first operation, orthopaedic surgeon, Mr Shane Barwood, used keyhole surgery to repair part of one tendon but not the other; in the second operation, a muscle was transplanted from Mr Menz’s back to his shoulder.
Subsequently, Mr Menz was off work between 21 August 2008 and 14 September 2008; and then between 11 March 2009 and 27 April 2009. He returned to work on modified duties from 15 September 2008 until the second operation. After the second operation, Mr Menz is reported as saying that his shoulder was ‘more comfortable’ and ‘most of his pain has resolved’.
From 6 May 2008, Border Express developed a rehabilitation program and a series of Suitable Duties Plans for Mr Menz. The ‘suitable duties’ mainly involved office duties, although for a period of about six months in late 2009 and into 2010, Mr Menz was also undertaking some forklift driving. Mr Menz continued to work under that plan for about 12 hours a day, five days a week, until 13 August 2010, when he ceased working. Since then, he has worked a total of two days in December 2010, spanning over two weeks and for only two hours on each occasion. Mr Menz claimed he did ‘two hours of nothing’ in the first week, and in the second week, his duties involved some checking of loads and walking around his workplace.
The aim of the Suitable Duties Plans to 30 April 2010 was for Mr Menz to return to truck driving for Border Express. Mr Menz underwent a functional assessment on 13 January 2010, conducted by Ms Wendy Horn, an occupational therapist employed by Border Express and Mr Menz's return to work coordinator. In a report dated 8 April 2010, Ms Horn found that Mr Menz had the capacity to drive a truck but would have problems operating controls with his left upper limb, and other tasks associated with being a truck driver, namely, handling the gates and curtains on the side of the trailer, coupling and uncoupling the trailer, climbing onto the trailer, climbing into the cabin of the truck, and changing tyres. Dr Ian Collins, consultant physician, confirmed in a report of July 2009 that Mr Menz ‘should not be obliged to carry out any manual work using his left arm’.
Mr Shane Robertson, Mr Menz's treating physiotherapist, initially recommended in reports of June and July 2009 that Mr Menz’s shoulder was not sufficiently strong to permit him to drive a forklift or a truck and he stated that ‘manual handling may present difficulties’. His clinical notes for 21 April 2010 noted that Mr Menz had ‘failed a driving test due to lack of bilateral arm use but is coping OK with forklift work, with fatigue after one to two hours’. The report also said that Mr Menz’s fitness level had plateaued.
Mr Barwood, the orthopaedic surgeon, reported on 22 October 2009 after the second operation, that Mr Menz still had pain and required Endone, a painkiller, at night. He said Mr Menz needed to continue physiotherapy, and endorsed the graduated return to work program. On 21 April 2010 he reported that Mr Menz’s progress had plateaued, that he was to use his shoulder ‘as comfortable but if he is performing activities that are causing shoulder pain, that it is sensible for him to reduce his activity load’. He noted after reading the Workcover correspondence that:
‘… it seems that he has been treated in the same category as most patients having a rotator cuff repair surgery without consideration that he has had much more extensive surgery, including the latissimus dorsal transfer, which … is a rare operation to try to counteract significant rotator cuff deficiency. … I suspect he will require joint replacement surgery.’
On 15 November 2009, Mr Menz submitted an incident report concerning anxiety and health issues, including eczema related to the excessive hours he said he was working.
On 16 February 2010 at a case conference between Mr Menz, Ms Jacinta Macaulay, senior welfare officer at Border Express, Ms Horn, Mr Robertson, and Mr Menz's general practitioner, Dr Joseph Hruz, it was recommended that Mr Menz undergo a driving assessment to determine whether he could return to truck driving for Border Express. As the clinical notes of Mr Robertson indicate, he undertook that assessment and failed the truck driving test. It was also recommended that his forklift driving should be increased but his office duties should be reduced. Following these assessments, Mr Menz's Suitable Duties Plans from 1 May 2010 listed the ‘Return to Work Goal’ as ‘same employer different job’ (emphasis added).
Mr Menz was then encouraged to undertake a basic skills computer course in 2010, which, with the assistance of Ms Macaulay, he passed. However, as noted by Mr Ian Jones (Orthopaedic Surgeon) in his report of 21 August 2008, and confirmed by Mr Menz in evidence, his work involved the right-handed use of a computer only.
Mr Menz submitted a further incident report on 5 August 2010, claiming he was suffering from a ‘disease’ comprising anxiety on ‘every Tuesday,’ and the time of the incident was recorded as ‘when I get pay slip’. This referred to his complaint that every payday he would get frustrated since his payslips were regularly inaccurate. On 2 December 2010 he submitted a claim for worker’s compensation with respect to anxiety and depression condition. He had signed the claim on 13 August 2010, that is, the day he ceased work.
In September 2010, Border Express engaged Ms Susie Rowlings of Konekt, an approved rehabilitation provider, to provide rehabilitation assistance to Mr Menz. She undertook an Initial Needs Assessment on 7 October 2010, and provided a report, referred to later in these reasons, dated 12 October 2010.
Dr Anthony Sheehan, psychiatrist, reported to Border Express on 19 October 2010 in relation to the claim by Mr Menz for compensation of a psychological injury he suffered as a consequence of his shoulder injury. Dr Sheehan diagnosed ‘Adjustment Disorder … secondary to …[Mr Menz’s] left shoulder injury, chronic pain, restrictions in physical capacity and also possibly related to disputation over the management of his claim’.
A case conference was held on 27 October 2010 attended by Mr and Mrs Menz, Dr Hruz, and Ms Rowlings and is referred to later in these reasons.
In his clinical notes around this period Dr Hruz noted Mr Menz had been regularly prescribed Endone for pain relief, at least since December 2009; Mobic, another pain medication was prescribed on 6 May 2010, and varied dosages of Zoloft, an anti-depressant from September 2010. Dr Hruz's entries from mid-2010 are:
7.7.10: ‘Condition same. Started to get ? depressed, more tired, decreased social contact, decreased libido, recommended [indecipherable] & review mental health’.
13.8.10: Frustrated with situation at work. Did not go to work today, feels more depressed and high anxiety level. Needs some time off work. ? with [indecipherable] motivation if not sitting.
20.8.10: Feels better, but not ready to start work yet. Still anxiety, indigestion, insomnia, tiredness.
7.9.10: About the same, symptoms of depression not subsiding after period of rest. Talk re depression. Start Zoloft 50gm.
20.9.10: Danny on Zoloft. … Slumber same.
6.10.10: Taking Zoloft 50mg, not much improved, still feels depressed, insomniac unable to face work. Increase Zoloft to 100mg. Left shoulder same.
27.10.10. Feels better on Zoloft, not suicidal, does not cry, ‘short fuse’, still tiredness, feels he is still unable to face any work at Border Express, gets upset to think about them. Left arm condition same, at times needs more pain killers.
29.11.10: Frustrated because not suitable work found by Border Express … Continue Zoloft at 100mg. Certificate given – suitable duties; conference with rehab provider.
22.12.10 (1.5 hrs consultation): Went work on 2 occasions – 2 final days ‘did not do much’ did not feel well during and after work. Letters from psychiatrist and psychologist …. Discussion with rehab representative re reports. W/c certify. Written with permission of consulting psychologist.
21.1.11: Not working, feels same, report re phone call from Suzie Rowlings who said he ‘has to go to work on 17 January on basis of Dr John McMahon’s report’. Ref[erral] to Dr Suzette Sowden for 20 consultations to manage anxiety and anger, as suggested by Ms Rowlings (see Psychiatrist – Dr Anthony Sheehan’s letter.).
18.2.11: Attended Dr Sowden v 2, gets well … her, has confidence in her. To continue counselling.
Dr Hruz provided medical certificates that Mr Menz was unfit to work from 13 August 2010 to 5 December 2010; fit for suitable duties from 6 December 2010 to 20 December 2010; was again unfit for work from 21 December 2010 to 21 January 2011; and subsequently to 27 September 2011. His medical certificate dated 27 November 2010 referred under ‘management’ to the need for consultations with a ‘registered psychologist or psychiatrist’. A further medical certificate for 22 January 2011 to 22 February 2011 was provided by Dr Hruz. It was listed as received by Border Express on 24 January 2011.
Dr Hruz provided a report to the Tribunal dated 23 September 2011, concerning the medical certificate he had provided for Mr Menz on 22 December 2010. In it, Dr Hruz recorded details of a 1.5 hour consultation with Mr Menz, during which Mr Menz had said he ‘did not feel well both during and after work’ on both of the occasions he had been at work in December 2010. The consultation had included a long discussion with Mr Menz about the ‘letters from a Psychiatrist and a Psychologist’ [Dr Sheehan, and Dr McMahon] and noted that Mr Menz had agreed ‘to seek rehabilitation counselling and support from a local psychologist’ and that he might need further work with a psychiatrist.
Dr Hruz recorded that he had diagnosed Mr Menz as suffering depression because of his ongoing Workcover issues and his subsequent claim, and noted ‘a degree of Anxiety was being experienced by Mr Menz in relation to his future’. He said his shoulder had stabilised, but for Mr Menz ‘day to day living activities were becoming more difficult to manage’. His prognosis was ‘guarded’.
A facsimile to Dr Hruz from Ms Horn dated 21 January 2011 noted that Dr Hruz had prescribed an increased dosage of Endone from 4 January 2011. Ms Horn said ‘I have some concerns in regards to pain levels of Mr Menz’s left shoulder’.
Dr John McMahon, clinical psychologist, provided a report on 15 December 2010 December for Border Express. The report states that it was ‘to assist with Mr Menz’s claim for Worker’s Compensation after he suffered an injury to his left shoulder’. The report recorded that Mr Menz had formerly suffered a mild adjustment disorder with depressed mood, but this was now controlled by medication. Border Express accepted Mr Menz’s psychological condition as secondary to his physical condition on 10 December 2010.
At a case conference on 22 December 2010, attended by Ms Rowlings, Dr Hruz, Mr Menz, and Mrs Menz, the report of the meeting, dated 4 January 2011, noted that ‘recent independent medical reports were discussed at length’, namely the reports of Dr Sheehan and Dr McMahon.
Mr Ian Jones, orthopaedic surgeon, reported on 24 December 2010, that Mr Menz has:
… limited active movements in his left shoulder to approximately less than one-third of normal. This is associated with some pain symptoms which impact upon the usefulness of his left arm. He has normal function in his left elbow and left hand.
In his view, Mr Menz was capable of undertaking the duties listed in ‘Suitable Duties Plan No 23’, and could use a forklift, provided he was able to use only his right arm for driving and steering.
On 11 January 2011 Border Express made a determination that Mr Menz should undertake a rehabilitation program commencing 17 January 2011, failing which his compensation payment would be suspended. Ms Macaulay asked Ms Rowlings to communicate this to Mr Menz. This she did by telephone, and advised that he would be receiving a letter in the next few days. She also advised, as instructed by Ms Macaulay, that there would need to be a written reason for not participating in the return to work plan, and that his payments could be suspended if he did not comply. Mr Menz was angry, and said his medical certificate of unfitness for duties ‘should be considered above independent medical assessments’.
A letter dated 11 January 2011 was sent to Mr Menz. Attached to the letter was a ‘Return to Work Plan – Amendment’, signed by Ms Macaulay, and dated 10 January 2011. The commencement date was listed as ‘29/7/2011’ on p 1, which date was also listed as the ‘New expected RTW Plan Services end date’. On p 2 17/01/2011 was listed as the commencement date. Ms Rowlings was referred to as the Provider of the rehabilitation services. The graded return to work commenced at ‘5 hrs per day x 5 days (week 1); 6 hrs per day v 5 days (week 2); 6 hrs per day v 6 days (week 3); 7 hrs per day x 6 days (Week 4)’ and then ‘Return to normal hours’. The Plan was not signed by Ms Rowlings or Mr Menz. The supervisor’s signature was also not provided. The graded return to work hours substantially reflect the recommendations in the report of Dr McMahon.
The duties of the employee were expressed to be:
·To undertake suitable duties at Albury Depot around medical restrictions on a graduated return to work;
·To attend all medical appointments with Nominated Treating Doctor;
·To attend counselling treatments if required and undertake home based exercise program for physical condition.
What amounted to ‘suitable duties’ was not specified. The last ‘Suitable Duties Plan,’ No 23, signed by Mr Menz on 12 July 2010, contained a list of duties including administrative tasks, training, data entry and some forklift driving, to be performed at the Albury warehouse. The Plan was for the period 8 July 2010 to 17 September 2010. No subsequent ‘Suitable Duties Plan’ had been provided.
Mr Menz did not return to work on 17 January 2011. Nor did he provide a written reason for not doing so by 17 January 2011. However, Mrs Menz communicated with Border Express on 12 January 2011, saying Mr Menz had been very upset by the conversation. She advised in her email that as she was going to Sydney for a week, Konekt was not to contact any of Mr Menz, Dr Hruz or Mr Menz’s treating doctors, and that all communication from Border Express should be in writing. Mrs Menz indicated Mr Menz’s anger at the failure to follow the program agreed to on 22 December, and at the direction that Mr Menz should return to work, contrary to his medical adviser’s certification.
A ‘Closure Report’ from Ms Rowlings dated 17 January 2011 stated that ‘Mr Menz’s rehabilitation file is to now be closed, as there appears little capacity for Konekt to facilitate a return to work at this point in time’. The report noted that at her last consultation with him, Mr Menz had ‘presented as relaxed and advised of no concerns aside for [sic] ensuring he remained away from individuals who managed his Comcare claim’. The report also noted that ‘Mr Menz’s employer provided [an] opportunity for Mr Menz to participate in a range of return options including working at an alternate depot if required’. At the same time, the report noted that Mr Menz remained unfit for work as certified by Dr Hruz.
An email from Mr Menz, sent from Mrs Menz’s computer system on 1 March 2011, stated that as he had provided current medical certificates stating he was ‘unfit to work until Dr Susette Sowden or my Treating doctor declare that I am fit to return’. It also stated that ‘I will not return to work until such time as Dr Sowden or my treating doctor declare that I am fit to return’.
As Mr Menz did not return to work on 17 January 2011, Border Express advised in a letter dated 17 March 2011 of the suspension of his compensation payments effective from 20 March 2011. The letter also said Border Express would no longer be responsible for Mr Menz’s medical expenses as his claim had been suspended under section 37(7) of the Act. This decision was confirmed on further review by letter dated 20 April 2011. The letter confirmed that it regarded Mrs Menz’s email of 12 January 2011 and Mr Menz’s email of 28 January 2011 [sic] as being ‘excuses’ within the meaning of section 37 of the Act. The letter relied on Dr McMahon’s report and the report of Mr Jones dated 21 [sic 24] December 2010 that he was fit to undertake the Suitable Duties listed in Plan No 23 as reasons justifying his return to work direction.
Dr Susette Sowden, clinical and forensic psychologist, saw Mr Menz on 10 February 2011 following the referral of Dr Hruz on 21 January 2011. She provided a report on 10 march 2011 at the request of Ms Horn and included a complete ‘Border Express treatment plan form’ indicating that Border Express was meeting the expense of the services. She assessed Mr Menz as ‘suffering mild symptoms of depression and anxiety’, with his depression ‘more pronounced than his anxiety’. Her diagnosis was that he was suffering ‘chronic adjustment disorder with depressed and anxious mood’. She confirmed that he was at present unfit to return to work but would eventually be able to return to work with another employer. She confirmed that the cause of his adjustment disorder was multifactorial, including ‘his physical injury, the psychological impact of the Workcover process, including his difficulties with return to work in office duties in which he felt out of his depth’, physical pain due to his accepted injury and the impact of the shock of sustaining injury within the context of formerly good physical and mental health and former ability to provide financially for his family.
CONSIDERATION
A preliminary issue raised by counsel for Border Express was whether the Tribunal had jurisdiction in this matter. In brief, the contention was that since, according to Dr McMahon’s evidence, Mr Menz was no longer suffering a psychological injury under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act), the Tribunal could, under the principles in Telstra Corporation Ltd v Hannaford,[1] make a finding to that effect. It followed, according to the argument, that if Mr Menz had no entitlement to compensation for at least his psychological injury, actions taken by Border Express in relation to a return to work program were not authorised. Accordingly, the decision by Border Express to suspend his compensation was a nullity and it followed, so it was argued, the Tribunal had no jurisdiction to make a decision in relation to the section 37(7) determination.
[1] Telstra Corporation Ltd v Hannaford (2006) 151 FCR 253.
Although this issue was raised only during closing submissions, the Tribunal does not consider it to be inappropriate, given the protracted nature of these proceedings and the fact that information on which counsel for Border Express relied was confirmed from evidence provided by the applicant at the hearing.
However, the Tribunal does not accept the contention. The Tribunal notes the well-established principle that the Tribunal is not inhibited from reviewing a ‘purported decision’,[2] even if it is a nullity. The Tribunal accepts that Telstra Corporation Ltd v Hannaford is authority for the principle that a tribunal is not inhibited from making findings of fact inconsistent with findings in earlier proceedings provided the facts in the earlier matter relate to the matters being considered in the current claim. As the Full Court noted in Hannaford, in a claim under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act) the Tribunal was authorised ‘to make findings of fact that effectively undercut the necessary findings of fact made in the initial or original decision’.[3]
[2] Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 41 FLR 338 at 342 - 344 (Bowen CJ).
[3] Telstra Corporation Ltd v Hannaford (2006) 151 FCR 253 at [59] (Heerey, Dowsett and Conti JJ)
The Full Court, however, emphasised the correctness of the approach adopted in earlier decisions[4] that making contrary findings of fact did not extend to making findings of absence of jurisdiction in matters outside the scope of the ‘reviewable decision’ before the Tribunal. The Court quoted with approval the judgment of Sackville J in Power v Comcare[5] where his honour asserted that the alternative approach (akin to the approach advocated by counsel for Border Express in this matter):
… has the potential … to render [the scheme of the SRC Act] cumbersome in determining claims for compensation under specific heads which are rejected … following upon a determination of liability under s 14, unless that determination is itself reconsidered by the determining authority’s own motion under s 62(1) of the SRC Act …’;
and further at [55] that the approach of the applicant for relief in Riddle ‘… fundamentally misconceives the decisions under review as being decisions made under s 14 of the SRC Act [when] they are not.[6] (emphasis added)
[4] Power v Comcare (1998) 89 FCR 514; Comcare v Hill (1999) 56 ALD 487; Riddle v Telstra Corporation Ltd (2006) 149 FCR 348.
[5] Power v Comcare (1998) 89 FCR 514 at [40].
[6] Telstra Corporation Ltd v Hannaford (2006) 151 FCR 253 at [56].
In other words, in the current matter, unless the facts relate to a reconsideration of liability for a psychological condition under s 14, the Tribunal cannot reconsider the correctness of that initial decision.
The decision under consideration by the Tribunal is a ‘reviewable decision’ of the decision-maker in accordance with the terms of section 62 of the Act. It is that decision which the Tribunal has jurisdiction to reconsider (section 64 of the Act). In this instance the reviewable decision is a decision made under section 37 of the Act for which ‘notice’ was given to Mr Menz (section 63 of the Act). The decision under review is not a decision under section 14. Facts which may be inconsistent with the initial liability under section 14 for Mr Menz's psychological condition are not at issue in a review of a decision under section 37(7).
In those circumstances, the Tribunal rejects the argument of counsel that it does not have jurisdiction to consider the matter. There is no decision by Border Express that it has no liability for Mr Menz’s depressive disorder. At the time of the hearing, Mr Menz had an accepted claim for a psychological condition. There is no reviewable decision on that issue. The only reviewable decision is that made by Border Express in relation to section 37. It is on that issue that Border Express had made a ‘reviewable decision’; it is that decision which the Tribunal is reviewing and which it has jurisdiction to review.
Decision under section 37(7)
Section 37(7) of the Act provides:
37(7) Where an employee refuses or fails, without reasonable excuse, to undertake a rehabilitation program provided for the employee under this section, the employee’s rights to compensation under this Act, and to institute or continue any proceedings under this Act in relation to compensation, are suspended until the employee begins to undertake the program.
The task of the Tribunal in accordance with this section is to decide whether Mr Menz has refused or failed, without reasonable excuse, to undertake a rehabilitation program provided for him. Mr Menz is relying on the defence that he had a reasonable excuse, which in effect requires attention to two matters: what were Mr Menz’s excuses; and were those excuses reasonable. The statutory test requires that the excuse must be personal to Mr Menz;[7] the reasonableness of the rehabilitation program is irrelevant.[8] It is for the Tribunal, on an objective basis, to decide whether the excuse is reasonable.
[7] Pascoe v Australian Postal Corporation (2004) 77 ALD 464 at [19] (Hill, Marshall and Finkelstein JJ).
[8] Id at [21].
A ‘reasonable excuse’ is not defined. It is a statutory expression couched in ordinary English words.[9] For an excuse to be ‘reasonable’ there must be an acceptable explanation for the failure to comply with a statutory requirement.[10] A ‘refusal’ or a ‘failure’ should also be given their ordinary meanings.[11] Those ordinary meanings require it to be shown, in order to establish that the person has refused to undertake a rehabilitation program, that the person exercised their will or discretion in relation to the refusal or failure to comply with that program.[12]
[9] Re Reddy and Medicare Participation and Review Committee (AAT 9257, 19 January 1994) at [12] (DP McMahon, Member Thorpe and Member Way).
[10] Re Secretary, Department of Social Security and Schmidt (AAT 9697, 26 August 1994) at [13] (SM Beddoe).
[11] Re Oakes and Comcare (AAT 10495, 26 October 1995) at [66] (SA Forgie DP, Member Brennan and Member Kennedy)
[12] Ibid.
Mr Menz did not return to work on 17 January 2011. The Tribunal finds accordingly that he refused or failed to return to work on that day, giving those terms their ordinary English meaning. The principal issue is whether he had an excuse or excuses for that refusal or failure and whether the excuse or excuses were reasonable.
A return to work program had been provided for Mr Menz from a short time after he injured his shoulder in May 2008.[13] The history indicates that since that time considerable effort had been taken by Border Express to return Mr Menz to productive work. Payments had been made for Mr Menz’s operations to his shoulder, physiotherapy was provided for periods, he was assessed by an occupational therapist, and also by orthopaedic surgeons. He was encouraged to take a basic computer training course and with the assistance of Ms Macaulay, he successfully completed the course giving him basic computing skills. Twenty-three ‘suitable duties’ plans were devised between 6 May 2008 and 8 July 2010 and agreed by all parties. An external rehabilitation provider, Konekt was arranged in September 2010, and a rehabilitation case officer, Ms Susie Rowlings, was appointed to work with Mr Menz in late 2010. Assistance was provided to him with some domestic duties. Border Express also agreed to arrange for Mr Menz to have consultations with a psychologist. The overall history of effort by the employer in relation to the rehabilitation of Mr Menz was commendable.
What were Mr Menz/s excuses and were they reasonable?
[13] Act s 37(1).
Excuses
Border Express found that Mr Menz’s excuses were contained in the email from Mrs Menz to Border Express on 12 January 2011, and the email from Mr Menz to Border Express on 28 February 2011. The Tribunal accepts that these were overt excuses. The Tribunal has also gleaned excuses from the testimony of Mr Menz at the hearing, and from other evidence before the Tribunal, discussed later in these reasons.
In combination these sources indicate that Mr Menz did not go back to work due to his accepted physical injury and psychological conditions and the impact of these conditions on his ability to function; his frustrations at the complaints process; because he had a medical report from his treating practitioner that he was unfit for work, a finding supported by other medical and health practitioners; and because he considered it was inappropriate for Border Express to ignore these reports and their own undertakings to assist with his rehabilitation in favour of the report of a clinical psychologist, Dr McMahon. The evidence in support of these findings follows.
Date at which inquiry should be considered
Section 37(7) does not spell out the date at which there is to be consideration of the reasonableness of an excuse. Nor has the Tribunal been able to discover a decision in which this issue has directly been considered. Although the apparent refusal to return to work was evident on 17 January 2011 when Mr Menz did not return to work, it is reasonable for an employer to wait for a period to ensure that no reasonable excuse is forthcoming. That appears to have occurred in this instance. Border Express, in their letter to Mr Menz on 20 March 2011, identified as his excuses the email from Mrs Menz on 12 January 2011 and the further email from Mr Menz on 28 February 2011. At that point Border Express needed to assess those excuses to decide whether they were reasonable. That required administrative action by the employer, Border Express. As the Full Federal Court said in Australian Postal Corporation v Forgie,[14] which considered the related issue of whether a decision under section 37(7) was ‘self-executing’, a decision involving an exercise of judgement was involved. As the Court said:
[W]e … fail to see how action to suspend payments, or to stop any proceedings under the SRC Act, can be taken otherwise than by following a decision of the determining authority that the requisite conditions are met, that steps to stop payments should be taken and that a record of the suspension of rights to institute or continue proceedings in relation to compensation should be made on the employee’s file.
[C]ertain administrative processes must precede the suspension of compensation and proceeding rights. Some officer in the determining authority must form an opinion that there has been an unreasonable refusal or failure to undertake the rehabilitation program such that s 37(7) applies.[15]
[14] Australian Postal Corporation v Forgie (2003) 130 FCR 279.
[15] Id at [54]-[55]
44. The administrative steps taken by Border Express following its notification of 11 January 2011 that Mr Menz return to work on 17 January 2011, were not taken until after it had received his email of 28 February 2011. No decision that Mr Menz did not have a reasonable excuse was made and notified to Mr Menz until 20 March 2011. As the letter to Mr Menz on that date indicated, Border Express had considered the evidence following his failure to return to work on 17 January 2011, namely, the email from Mrs Menz, the letter to Mr Menz from Ms Macaulay dated 24 January 2011, Mr Menz’s email of 1 March 2011 [sic 28 February 2011] and the medical evidence. Accordingly it is the 20 March 2011, which is the date for the Tribunal’s considerations of these issues.
Were the excuses reasonable?
Counsel for Border Express contended that the sole/principal reason Mr Menz refused to go back to work and participate in his rehabilitation program was his frustration due to the claims process.[16] The contention was that Mr Menz’s refusal was not related to his accepted injuries. The contention was based on the apparently abrupt departure of Mr Menz from Border Express where he had been working 58.16 hours a week, and his subsequent inability to work at all, with the exception of the four hours in December 2010, without any apparent supervening medical cause.
[16] Australian Telecommunications Commission v Tzikas (1985) 5 AAR 173; Kirkpatrick v Commonwealth (1985) 62 ALR 533; Re Mathey and Australian Telecommunications Commission(AAT 4040, 23 December 1987) ; Re Lovelace and Australian Postal Corporation (AAT 7986, 28 May 1992)
Counsel for Mr Menz contended that Mr Menz’s cessation or work was consistent with the opinion of Dr Sheehan In October 2010 that Mr Menz was not fit for work, a view supported by Dr Hruz and later by Dr Sowden.
Was the sole/principal reason Mr Menz ceased work on 13 August 2010 due to his frustration with the claims process?
In oral evidence, Mr Menz described his work patterns in the six months leading up to the 13 August 2010 when he went off work. He said in that period, he was working a 12 hour day for 5 days a week with breaks, that is, for 58.16 hours a day. For about three hours a day he was driving the forklift, but he would do a half hour on and a half hour off. He did not do more he said because he had been ‘told to get off [as] soon as it started aggravating the shoulder’. For the balance of time he would be scanning consignment notes for freight for about 4 hours a day, or checking that the freight was going on the correct truck, checking equipment to ensure it complied with occupational health and safety requirements, and making sure the pathways were clear and safe.
When asked what changed on 13 August 2010 to cause him to cease work, his response was ‘Frustration built up over my claim. Every time I went to ask something about my claim I could never get an answer. And in the end, it just built up too much. And the doctor told me to take a break’. He also said that ‘all the crap over my claim built’ up. When asked ‘So it’s really the process of what was happening with your claim that was causing you problems?’ his response was ‘Yes, and I couldn’t get a decent answer for it’.
Mr Menz also acknowledged that in the incident report he signed on 5 August 2010, he had listed the receipt of his pay slip every Tuesday as the cause of his frustration. The statement in his handwriting attached to the report referred to his concerns about difficulties with obtaining correct payments from his employer and their slowness in making repayments if they had made a mistake as the aggravating factors. That incident report was accepted to be part of his claim for workers’ compensation for his depressive disorder.
Mr Menz also said in oral testimony:
…the reason why I got depressed was that – they say I was treated over my claim of my compensation for the injury to the shoulder and why I had – or trying to find out why they were putting – taking pay out – money out of my pay every week, and every Tuesday I worked the same hours every week but yet my pay was different every week; that was the worst thing they could not explain to me why they were doing it.
Later, however, when he was asked to assent to an assertion that ‘there was no physical reason that you couldn’t have continued’, his reply was ‘Well I was also having trouble with all the medication I was on … not focusing, not being able to see properly, and not being able to think straight’. In addition, Mr Menz said ‘Joseph Hruz told me I wasn’t fit for suitable duties at work’. It was Dr Hruz’s opinion that I should not have been driving a forklift.
Mr Menz also explained the long hours he was working was because he was told to do so by his employer; these were the hours he had done as a truck driver and if he wanted an equivalent wage he had to perform ‘suitable duties’ for the same amount of hours. He confirmed too that in the period to January 2011, his depression did not improve; and the pain in his shoulder ‘flared up and down’ depending on how much work he was doing. In evidence he said that his work patterns were affected by his shoulder injury in that he was only able to work on a forklift for half an hour at a time before discomfort set in.
The Tribunal accepts on this evidence that Mr Menz's frustrations with the claims management process were a significant factor in his decision to go off work on 13 August 2010. However, his evidence, together with the evidence of Dr Hruz, indicates that it was not the only reason. His frustration, on the medical evidence, was engendered in part by his continuing physical disabilities, his medication for his physical and psychological conditions which prevented him working effectively at his forklift and clerical duties, and his doctor’s advice that for medical reasons he needed to take time off work. The Tribunal finds that the medication issues Mr Menz was experiencing also impacted on his ability to operate the forklift as well as any computational or assessment clerical work. These matters suggest that the contention of the respondent’s counsel that it was solely or principally frustration with the claims management process that led Mr Menz to cease work on 13 August 2010 is not borne out by the evidence, and the Tribunal finds accordingly.
The matters outlined in the previous paragraphs relate to the reasons Mr Menz ceased work on 13 August 2010. The issue before the Tribunal, however, is whether those and other reasons are relevant to his decision not to return to work on 20 March 2011.
Additional evidence
The Tribunal notes that Mr Menz raised a number of reasons other than his dissatisfaction with the claims process, and the reasons outlined in his testimony earlier for his cessation of work. Where available corroborative evidence is also provided.
Mr Menz said his shoulder caused him constant pain and he was prevented from using his left arm and shoulder for many activities of daily living. For instance, Border Express had agreed to provide him with assistance with mowing his lawn as he was unable to manage that task. Although Mr Menz had undertaken a basic word processing course, as he said at the hearing, he could only work at the computer with his right hand. That was distinctly limiting and led to understandable reluctance on his part to use computer equipment.
That reluctance was confirmed by Dr Sowden in her report of 20 March 2011 in which she noted that Mr Menz ‘felt out of his depth’ in relation to the office duties he was asked to perform.
The Tribunal considers that this factor, together with the quite basic knowledge of computer skills he had acquired, his lack of familiarity with the medium, were partial explanations for his anxiety, depression and frustration.
In addition, Mr Menz had indicated in his incident report of November 2010 that the long hours he was working, required of him by his employer in order to maintain his level of salary, made him tired and anxious. Those reactions were contributed to by the effort required to operate a forklift using only his right arm, together with the accuracy required for his clerical tasks, and the concentration and visual acuity required in this daily clerical work which were impaired by the medication he was taking.
Dr Hruz’s clinical notes support this evidence as they record Mr Menz’s anxiety, tiredness and depression some five and a half weeks prior to his recommendation on 13 August 2010 that Mr Menz take time off work. That suggests Mr Menz had not suddenly on 13 August become unable to work 58 hours a week, and that his health problems had been developing for some time. At the case conference on 22 December 2010, Ms Rowlings also said it was her opinion that it was Mr Menz’s shoulder alone which led to his depression and anxiety and to his being unable to work. Dr Hruz indicated that it was a combination of Mr Menz’s frustrations with the claims processes as well as his physical and psychological problems which led to his ceasing work.
Medical evidence of disability
There is considerable evidence relating to the continuing and disabling symptoms Mr Menz was suffering due to his initial shoulder injury. Mr Menz was aware of the contents of these reports or their recommendations at least by the end of 2010. With the possible exception of the report to Border Express of Dr Ian Jones dated 24 December 2010, Mr Menz and/or Mrs Menz had both attended the assessments or discussions referred to in the reports and either read or been apprised of their contents.. These reports related to Mr Menz and included the records of discussion of case assessments, and reports of medical and related health professionals.
The Tribunal notes in particular that Dr Hruz’s clinical notes for 22 December 2010 refer to the ‘Letters’ from a psychiatrist and a psychologist, that is, Dr Sheehan and Dr McMahon, being discussed at the 1.5hr consultation that day. Those two reports were also the subject of ‘extensive discussion’ at the case conference on 22 December. These reports were significant to the matters under review.
Following his second operation on Mr Menz’s shoulder in September 2009, Mr Barwood reported on 22 October 2009 that Mr Menz would continue to experience pain, that he needed physiotherapy, and that although Mr Menz was capable of a graduated return to work program, it should only be ‘as comfortable’. As Mr Barwood said, ‘if his activities are causing pain it would be sensible to reduce them’. In his 21 April 2010 report, Mr Barwood assessed Mr Menz’s shoulder condition as having plateaued, and repeated that if activities he was engaged in caused discomfort, he should reduce the extent of that activity. This recommendation ties in with the report on 19 July 2009 of the consultant physician, Dr Collins, who said Mr Menz 'should not be obligated to carry out any manual work using his left arm'.
Ms Rowlings, in her initial needs assessment report on 12 October 2010, recorded Mr Menz as saying that his inability to continue to drive trucks had resulted in a loss of a lifestyle and social network, and 'had contributed to his recent diagnosis of anxiety and depression'. She also recorded that Mr Menz said he could not lift over 10kg with his left upper limb, he had lowered frustration tolerance and poor attention and concentration, leading to inability to perform work activities, and that his anti-depressant medication had provided only limited relief to symptoms.
She listed these symptoms as ‘anxiety and depression, difficulty sleeping, poor concentration, decreased motivation and initiation, fatigue, constant ruminating about issues relating to payments and management of claim, low frustration tolerance, and occasional racing heart, without trigger’. The report also recorded Mr Menz saying he experienced 'significant frustrations at work in regards to Comcare processes and to difficulties in payments' over the last 12 months and that his anger had been building up over this period and he had now ‘had enough'. She recommended ‘Mr Menz discuss referral to a psychologist’ and that she would ‘provide proposed suitable duties plan to assist with planning for Mr Menz return to work and to clarify a rehabilitation goal’. Mr Menz had also told Ms Rowlings that he had observed a slight improvement to his conditions since ceasing work but that he did not consider he was capable of returning to work in the short term.
Dr Sheehan’s report of 19 October 2010 found Mr Menz was unfit for employment due to his ‘poor sleeping patterns, irritability, low energy and low motivation, phobic anxiety and avoidant behaviour’. He said Mr Menz needed further treatment of his diagnosed and accepted adjustment disorder, including psychiatric treatment and medication, and should be referred to a psychologist for his anxiety and anger management. His opinion was that Mr Menz’s injury had not stabilised since he had not yet undergone ‘maximal medical treatment for his adjustment disorder’. He accepted that Mr Menz's anxiety and depression were secondary to his physical injury. He had also noted his 'chronic pain’, and ‘restrictions in physical capacity' as well as the 'possibility' that his condition was also 'related to disputation over the management of his claim'. He confirmed that Dr Hruz's medical certificates were appropriate.
Dr McMahon in his report of 15 December 2010 concluded that although motivational factors were the principal reason for Mr Menz not returning to work, he still suffered moderate pain from his shoulder but not to a ‘clinically significant’ degree. He also found that Mr Menz exhibited ‘a mild degree of anxiety and depressed mood’ but no longer met the criteria for a mental disorder. However, he said ‘If Mr Menz’s depressive symptoms make a significant resurgence then a review by a psychiatrist with an interest in pain management would be appropriate’. His report suggested that Mr Menz’s anxiety and depression ‘has increased due to an intervening event, and most likely in reaction to the reasonable return to work process’. However, in Dr McMahon’s opinion Mr Menz was capable of returning to work at the same location and with the same employer, including using a forklift, scanning, and freight assurance duties, provided he had ‘a clearly outlined program and performance management schedule to counter the motivational factors, [and] that the work was consistent with his limitations’.
Other reservations in his report were that Mr Menz should not undertake forklift driving if he had taken Endone, which led to drowsiness, on the same day, and that he was fit to drive a car to work provided he was not ‘acutely affected by Endone or Panadeine forte’. He said he was unable to comment on the reports of ‘pain and physical injury which may impact on his capacity to return to work’, nor ‘on general medical conditions such as a shoulder injury’. In both cases he said ‘I defer to the opinion of a suitably qualified medical specialists [sic] such as an orthopaedic surgeon’. He also deferred to medical specialists as to the prescription of Endone for pain management, although he believed Endone could be contributing to Mr Menz’s symptoms of drowsiness. Dr McMahon provided a graded return to work schedule commencing at 5 hours a day for 4 days a week, increasing to 7 hours daily for a six day week, spread over a five week period and then resumption of full time duties. This would have returned Mr Menz to full-time duties within 5 weeks.
Dr Hruz had prescribed pain killers continuously for Mr Menz's shoulder injury: Endone, since December 2008; Mobic since May 2010. The dosage was variable depending on Mr Menz’s fluctuating pain levels. Dr Hruz’s clinical notes of 7 July 2010, noted that Mr Menz had become increasingly depressed, was more tired, had decreased libido and that his mental health should be reviewed. On 13 August 2010, the day Mr Menz left work, Dr Hruz noted 'feels more depressed and high anxiety level', leading to his recommendation 'Needs some time off work'. Although he reported Mr Menz feeling better on 20 August 2010, he noted 'Still anxiety, indigestion, insomnia, tiredness’. That position continued at 7 September 2010 when Dr Hruz prescribed Zoloft, an anti-depressant. The initial dosage of 50mg/day was increased to 100mg/day on 6 October 2010 when the lower dosage was ineffective. That was some two months after Mr Menz’s departure from the Albury workplace of Border Express.
Dr Hruz noted on 6 October 'Left shoulder same'. By 27 October 2010, the increased dosage of Zoloft was having a beneficial effect of Mr Menz's depression and anxiety. However, Mr Menz’s left shoulder was again noted as 'same' and that 'at times needs more pain killers'. Medical certificates from Dr Hruz continued to certify Mr Menz as unfit to return to work until 5 December 2010. A certificate dated 29 November 2010, certified him fit to work on ‘suitable duties’ for 2 hours a week from 6 December 2010 to 20 December 2010. However, following that experiment, Dr Hruz again certified him unfit to work from 21 December 2010 to 21 January 2011.
Dr Suzette Sowden, clinical psychologist, in a report dated 10 March 2011, diagnosed chronic adjustment disorder with depressed and anxious mood. Her opinion agreed with that of Dr Hruz that Mr Menz was not yet fit to return to work, but would be capable in time, provided it was not with Border Express, nor in an administrative capacity. In her view his psychological condition was due to a combination of his physical injury and its impact on his ability to work, the Workcover process, including difficulties returning to work in office duties in which he felt out of his depth, the impact of his pain from his physical injury, and the need better to manage that pain. In addition she noted that the psychosocial effect on Mr Menz of no longer being a hard worker and able to support his family were distressing for him. The cost of Dr Sowden’s services in 2011 were met by Border Express.
As at 20 March 2011 Mr Menz’s understanding from these medical reports and his own experience was that he continued to experience pain, of variable intensity, due to his shoulder injury, and that any further improvement in his physical disability was unlikely. His shoulder condition had not stabilised. That meant he was left with a permanent disability involving limitations for work and other activities of daily living, and he required regular, if not daily, use of painkillers. He had an accepted psychological injury and was on an enhanced dose of anti-depressant medication to stabilise the condition.
Although Dr McMahon said in his report of 24 December 2010 that Mr Menz was no longer suffering an adjustment disorder, Dr Sheehan’s report only some five or so weeks earlier, had come to a contrary conclusion. On 10 December 2010, prior to Mr Menz seeing the report of Dr McMahon, Border Express had accepted liability for the condition under s 14 of the Act. In her report of 10 March 2011, Dr Sowden also confirmed that Mr Menz had a chronic adjustment disorder with depressed and anxious mood, again contradicting the report of Dr McMahon.
Mr Menz was also experiencing negative psychosocial effects due to the loss of his career profession as a truck driver. As a consequence of his medical conditions, he said he was tired, had poor sleep patterns, irritability, reduced energy, and low motivation. He was also having difficulties with memory, concentration and with his sight, and finding the suitable duties he was required to perform, onerous.
These effects had been building up from before the time of his first incident report in November 2009 when he listed anxiety and health issues, including eczema, due to the excessive hours he considered he was working. The anxiety and depression was of sufficient concern to Dr Hruz in July 2010 for him to recommend Mr Menz needed a mental health review, and in September Dr Hruz prescribed an anti-depressant. He increased the dosage in October as the initial dose had not been effective. These problems had emerged prior to Mr Menz going off work on 13 August 2010 and despite some amelioration in his health in the months following 13 August 2010, they were still of sufficient moment by October 2010 for Mr Menz not to consider he could return to work. That view was supported by Dr Hruz, and Dr Sheehan. Although Dr Hruz suggested Mr Menz should attempt a return to work in December, the time involved - only 2 hours a week spread over two weeks - and Dr Hruz’s conclusion by 22 December that he was again unfit, suggest that the return had been premature. That view was also supported by Dr Sowden to whom Mr Menz had been referred for assistance with anger management and anxiety in January 2011.
Case management and other assessments
Other events also shed light on Mr Menz’s perception of his circumstances. In particular, the evidence from the discussions at the three case conferences, and the initial needs assessment review with Ms Rowlings. Mr Menz alone attended the February 2010 case conference and the initial needs assessment with Ms Rowlings; both Mr and Mrs Menz attended the two later case conferences in October and December 2010.
The case conference on 12 February 2010 concluded that Mr Menz’s work duties should increase the amount of time he spent forklift driving and decrease his office duties. However, as at August 2010, in undisputed evidence, Mr Menz said he could manage no more than 3 hours a day on the forklift. That meant, despite the recommendation that his clerical duties should be limited, he was doing office duties for close to 75 per cent of his working day of close to 12 hours. These clerical and administrative duties were areas in which Mr Menz was having admitted difficulties due to his medical conditions, his drowsiness, his memory, concentration and sight problems, and the difficulties he had with data entry and feeling out of his depth with clerical and administrative duties.
At the initial needs assessment by Ms Rowlings on 12 October 2010, Mr Menz was aware that there was a recommendation that he see a psychologist. Mr Menz agreed to the suggestion in December following discussions with Dr Hruz. In addition Ms Rowlings was 'to provide a proposed suitable duties plan to assist with Mr Menz return to work and to clarify a rehabilitation goal'; and Ms Rowlings, Mr Menz, and Dr Hruz were to have a review session by 27 October 2010 to discuss treatment recommendations and rehabilitation goals. Mr Menz had agreed he would consider returning to work if these matters could be sorted out.
These recommendations were confirmed at the case conference on 27 October 2010, recorded in the report to Ms Macaulay on 1 November 2010. Mr Menz was to make an appointment with a registered psychologist for assistance with his anxiety and depression, and Ms Rowlings was to clarify the physical demands of Mr Menz’s previous suitable duties and ’develop a graded return to work plan if appropriate to discuss further with Dr Hruz and Mr Menz’.
At that meeting, Mr Menz had advised that the location of the ‘suitable duties’ needed to be reconsidered, since if at the Albury Depot it would cause him additional distress and anger. At that meeting Dr Hruz reported that moving Mr Menz to another Border Express site 20 minutes away was not viable since Mr Menz could only drive a short distance due to the side effects of his medication. Dr McMahon also noted the drowsiness side effects of Mr Menz’s medication and recommended he not drive if he had taken Endone. Dr Hruz also said from a psychological viewpoint, Mr Menz was incapable of returning to work at that time. In his report of 23 September 2011, he said he would be guided by Mr Menz’s psychologist, but that if Mr Menz’s condition showed no change, a visit to a psychiatrist might be required. Dr Hruz confirmed that he would be prepared to certify fitness for suitable duties once the physical demands of the duties had been clarified and consideration had been given to the location of the work and travel restrictions. No time frame for a return to work was established.
None of these recommendations had been implemented by 22 December 2010, the date of the next case conference, which was also attended by Mr Menz. Mr Menz had been unable to obtain a consultation with a nominated clinical psychologist, no clarification of the physical demands of the previous ‘suitable duties’ had been undertaken by Mr Rowlings, and no alternative site to the Albury workplace had been identified. At that meeting Ms Rowlings agreed that Ms Rowlings would obtain a referral to a clinical psychologist. It was also agreed that Mr Menz's work capacity would be reviewed in one month, that is, by 22 January 2011. Dr Hruz confirmed that Mr Menz was unfit for work for the next month.
The case conference on 22 December 2010 also referred to extensive discussion of 'recent independent medical reports', namely, those of Dr McMahon, dated 15 December 2010 and of Dr Sheehan, dated 19 October 2010. Ms Rowlings said her understanding was that Mr Menz’s depression was secondary to his shoulder pain, and not due to circumstances or individuals at work. Dr Hruz said the two could not be separated.
CONCLUSION
As at 20 March 2011, Mr Menz’s reasonable, that is acceptable, excuses were:
·He understood that only one month earlier, on 10 December 2010, Border Express had accepted that his psychological condition was work-related. That acceptance was based on the opinion of Dr Sheehan, an independent psychiatrist, Dr Hruz, the treating doctor, and subsequently of Dr Sowden, a clinical psychologist whom Border Express had agreed should be employed to assist Mr Menz’s rehabilitation and return to work. It was accordingly inconsistent for Border Express in effect to deny the work-related effects of the condition so soon after it had been accepted based solely on the opinion of a clinical psychologist, Dr McMahon.
·Mr Menz’s accepted shoulder disability significantly limited his ability to work. He had been assured at both the 27 October and 22 December 2010 case conferences that a ‘Suitable Duties Plan’ which would take account of his physical limitations would be prepared for his approval by Ms Rowlings for discussion on 21 January 2011. That undertaking had not been honoured.
·Only 3 weeks after the undertaking had been repeated on 22 December 2010, he was directed on 11 January 2011 to return to work. The direction did not include a ‘Suitable Duties Plan’ much less had any plan or rehabilitation program approved by Mr Menz and all those involved in his rehabilitation, as promised. This was contrary to the medical evidence that Mr Menz was still unfit for work and was inconsistent with the view of Dr McMahon that Mr Menz needed a 'clearly outlined program and performance schedule' and work that was ‘consistent with his limitations’, and with the medical opinion of Dr Hruz that he would only be prepared to certify that Mr Menz could return to work if he was satisfied as to these matters.
·No time frame had been set for implementation of the proposed changes apart from the agreement to have a further meeting to discuss developments on 21 January 2011. That agreement raised an implication that Border Express accepted that there would be no change to the status quo until that date. So the sudden move by Border Express, without any prior warning, that he return to work, led to Mr Menz being understandably angry and uncertain about his future.
·The proposed duties in the letter provided some time after 11 January 2011 were to be at the Albury warehouse, despite discussions at the case conferences attended by Border Express that Mr Menz may need to work at an alternative site. This view was apparently acceded to by Border Express at the case conference on 22 December 2010. Ms Rowlings had said in her Conference Report that Mr Menz needed to ensure he had no contact with individuals who managed his Comcare claim, and that Border Express were prepared to find work for him at an alternate depot if required.
·Against this, there was medical evidence that Mr Menz might be unfit to drive to a workplace due to the medication he was on. That made it difficult to suggest an alternative site at which he might work. At the same time, these were factors that indicated Mr Menz’s continuing medical problems and inability to return to work at that time. The Tribunal notes that Dr McMahon deferred to the medical opinions that Mr Menz should be on the medication he was taking, despite its leading to drowsiness.
·It had been accepted by Border Express in both October and as at 22 December 2010 that Mr Menz’s rehabilitation required he have assistance to manage his anger and anxiety. For this purpose he was to see a clinical psychologist, and Ms Sowden was to arrange an appointment, again suggesting an acceptance by Border Express that until this treatment had been received, Mr Menz was not fit to return to work.
·Mr Menz continued to suffer the effects of his accepted physical and psychological injuries, requiring pain management and anti-depressant medication, and causing him distress due to his loss of ability to work hard and to support his family. He was also tired, had poor sleep patterns, irritability, reduced energy, and low motivation and was also having difficulties with memory, concentration and sight. As a consequence, he was finding onerous the suitable duties he was required to perform when formerly at work.
·Dr Hruz had certified Mr Menz was unfit for work from 22 December 2010, a certification by a treating practitioner on whom Mr Menz relied. A certificate remained in force as at 20 March 2011. Dr Sheehan and Dr Sowden agreed with this certification; only Dr McMahon disagreed, and in his report he deferred to the view of Dr Sheehan and Dr Hruz on the medical issues.
In summary, on 11 January 2011, within three weeks of the last case conference with Border Express about his rehabilitation, and following the Christmas/New Year holiday shutdown period when little action takes place in Australian workplaces, Mr Menz was advised that he was to return to work. That direction was made without any of the undertakings given on 22 December 2010 having been arranged and contrary to the agreement that a further meeting would occur to discuss developments on 22 January 2011. These factors, together with Mr Menz’s continuing physical limitations from his accepted conditions, were acceptable explanations for his refusal to comply with the oral direction on 11 January 2011 that unless he returned to work at the same location and with the same employer by 17 January 2011, his payments would be suspended. So although it is clear that Mr Menz was also frustrated with the claims process, the expectations raised by the undertakings given to Mr Menz and these other matters outweigh that factor and provide a reasonable excuse for his not returning to work on 20 March 2011.
The decision under review is set aside and the Tribunal finds that the suspension of Mr Menz’s compensation payments was unlawful, and his compensation payments should recommence from the date they were suspended.
94. I certify that the preceding 93 (ninety three) paragraphs are a true copy of the reasons for the decision herein of Professor Robin Creyke, Senior Member .
..............................[sgd]..........................................
Associate
Dated 5 April 2012
Date(s) of hearing 29 September 2011, 8 November 2011, 27 January 2012 Date final submissions received 3 February 2012 Counsel for the Applicant Andrew Muller Advocate for the Applicant Angus Bucknell Solicitors for the Applicant Maurice Blackburn Counsel for the Respondent David Richard Advocate for the Respondent Madeline August Solicitors for the Respondent Monahan & Rowell Lawyers
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