JAMES MENZ and BORDER EXPRESS PTY LTD

Case [2012] AATA 203

[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

  1. 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. 

  2. 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.

  3. 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.

  4. 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,…

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AGLC
JAMES MENZ and BORDER EXPRESS PTY LTD [2012] AATA 203
Case
[2012] AATA 203
Decision Date

CaseChat Overview and Summary

James Menz and Border Express Pty Ltd were involved in a dispute concerning a shoulder injury Menz suffered at work, which led to related anxiety and depressive disorder. The case was heard by the Administrative Appeals Tribunal (AAT). The primary legal issue was whether the Tribunal had jurisdiction to review Border Express's decision to suspend Menz's compensation due to his failure or refusal to comply with a rehabilitation plan. Another issue was whether there was a lawful rehabilitation plan in place and if Menz had a reasonable excuse for not complying with it.

The Tribunal found that it had jurisdiction to review Border Express's decision, despite arguments that Menz no longer had an entitlement for psychological injury. The Tribunal noted that the principles in Telstra Corporation v Hannaford did not prevent it from reviewing the matter, even if Menz's entitlement for psychological injury was no longer valid. The Tribunal examined the reasonableness of Menz's excuses for not complying with the rehabilitation plan, considering whether his physical and psychological conditions and frustrations with the claims process provided an acceptable explanation for his non-compliance. The Tribunal concluded that Menz's excuses were reasonable, and thus, his compensation should not have been suspended.

The final orders of the Tribunal would likely address the reinstatement of Menz's compensation and possibly outline further steps for Menz's rehabilitation, considering the reasonable excuses provided.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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)