Jennifer Jean Ripper and Australian Postal Corporation
[2015] AATA 15
•14 January 2015
[2015] AATA 15
| Division | GENERAL ADMINISTRATIVE DIVISION |
| File Numbers | 2012/5442, 2012/5445 |
| Re | Jennifer Jean Ripper |
| APPLICANT | |
| And | Australian Postal Corporation |
| RESPONDENT |
DECISION
| Tribunal | G. D. Friedman, Senior Member |
| Date | 14 January 2015 |
| Place | Melbourne |
Application 2012/5445: The Tribunal affirms the decision under review.
Application 2012/5442:
1. The Tribunal sets aside the decision under review and substitutes a decision that Ms Ripper has not refused or failed, without reasonable excuse, to undertake a rehabilitation program provided for her under s 37 of the Safety Rehabilitation and Compensation Act 1988 (SRC Act) and that her rights to compensation under the SRC Act should not be suspended.
2. Under s 67 of the SRC Act the respondent shall pay Ms Ripper’s compensation benefits from 10 July 2012 to the present date and at the present date under s 19 of the SRC Act and any other relevant section of the SRC Act.
...........................[Sgd]........................................
G. D. Friedman, Senior Member
COMPENSATION – whether return to work program was a valid and suitable rehabilitation program – refusal or failure to undertake rehabilitation program – meaning of to undertake – whether reasonable excuse
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 ss 19, 37(1), 37(3), 37(7) and 67
CASES
Australian Postal Corporation v Forgie [2003] FCAFC 223
Davis and Comcare [1997] AATA 406
Engelhard and Comcare [2009] AATA 194
Fairweather v Australian Postal Corporation [2009] FCA 1290
Freeman v Fleetmaster Services Pty Ltd [2013] FCA 1068
Ismailjee and Australian Postal Corporation [1995] AATA 555
Martiniello and Comcare [1994] AATA 507
Pascoe and Australian Postal Corporation [2002] AATA 745
Wilkinson and Australian Postal Corporation [1998] AATA 849
REASONS FOR DECISION
G. D. Friedman, Senior Member
14 January 2015
Jennifer Ripper joined the respondent in 1988 and worked in administration as a communications consultant in the area of public affairs. On 2 May 2001 she suffered an injury to her left knee in a work-related motor vehicle accident, for which the respondent accepted liability for compensation.
On 4 October 2012 the respondent made a reviewable decision affirming a primary determination of 15 June 2012 that the applicant should commence rehabilitation as per a rehabilitation upgrade program dated 7 June 2012. (Application 2012/5445).
On 4 October 2012 the respondent made a reviewable decision suspending the applicant’s entitlement to compensation on and from 10 July 2012 because of her alleged failure to undertake or continue to participate in the rehabilitation program dated 7 June 2012. (Application 2012/5442).
Ms Ripper seeks review of these decisions.
LEGISLATIVE BACKGROUND
Section 37 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) provides:
37 Provision of rehabilitation programs
(1) A rehabilitation authority may make a determination that an employee who has suffered an injury resulting in an incapacity for work or an impairment should undertake a rehabilitation program and, where the authority so determines, it may make arrangements with an approved program provider for the provision of a rehabilitation program for the employee.
...
(3)In making a determination under subsection (1), a rehabilitation authority shall have regard to:
(a) any written assessment given under subsection 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.
...
(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.
ISSUES
The issues before the Tribunal are:
Application 2012/5445: Was the return to work program a rehabilitation program for the purposes of s 37 of the SRC Act? If so, was the program a suitable program in all the circumstances? And if so:
Application 2012/5442: Did Ms Ripper refuse or fail to undertake the rehabilitation program? If so, did she have a reasonable excuse for failing or refusing to undertake the program?
APPLICATION 2012/5445: WAS THE RETURN TO WORK PROGRAM A REHABILITATION PROGRAM FOR THE PURPOSES OF S 37 OF THE SRC ACT?
Ms Ripper told the Tribunal that on 2 May 2001 she was returning to her office from an appointment at the State Parcel Centre in Port Melbourne when her vehicle was struck from behind by another vehicle. She sustained an injury to her left knee and on 17 May 2001 the respondent accepted liability for left knee injury. She said that pain in her left leg increased and she was diagnosed with deep vein thrombosis (DVT) extending from the left calf to the groin. The condition receded by November 2001. However she was diagnosed with a torn medial meniscus and developed a second DVT. She returned to full-time work in 2002 but aggravations in 2005 and 2007 (including a third DVT in 2007) caused her to reduce her working hours from 2008. She suffered a fourth DVT in 2008 and was diagnosed with chronic venous deficiency.
Ms Ripper said that after 2008 she experienced increasing pain and fatigue, particularly in her left calf and up to her thigh, and suffers from restless legs syndrome. She stated that she is able to drive an automatic car but has difficulty walking and standing. She is able to perform limited household tasks. She said that in February 2012 she attended Epworth Rehabilitation Camberwell (Epworth) for a rehabilitation pain management assessment by Dr D Lewis, rheumatologist. A pain management program (PMP) was devised after a multidisciplinary team assessment by an occupational therapist (Ms S Abrahams), a psychologist and a physiotherapist. Ms Ripper confirmed that in March 2012 she attended a pre-PMP program once a week for four weeks.
A summary of a case conference held on 29 March 2012 indicates that Ms Ripper was to proceed to a full PMP program to commence on 11 April 2012. The notes show that in the fourth week of the pre-PMP program Ms Ripper began to feel stressed and anxious about the case conference and the return-to-work process. The notes also show that the goal of the return to work program would be to leave work with no increase in pain levels. At the end of the seven-week program the respondent was contemplating that Ms Ripper would undertake a return to work program of four hours per week over two days, in conjunction with the final four weeks of the program.
On 15 June 2012 the respondent determined that Ms Ripper would commence rehabilitation as per a rehabilitation upgrade program (the program) dated 7 June 2012, following recommendations by Epworth dated 18 May 2012 for restricted working hours. The goal was to achieve 16 hours’ work per week on a graduated program, as follows:
·Week 1 − Friday 15 June 2012: Ms Ripper to work 2 hours, performing administrative duties. Restrictions: rotate posture according to time rather than to pain levels. Requirement for car park within manageable walking distance. To attend Epworth Pain Management Program on 13 June 2012.
·Week 2, commencing on 18 June 2012: 2 hours on one day. To attend Epworth Pain Management Program on 20 and 27 June 2012.
·Week 3, commencing on 2 July 2012: 2 hours per day for 3 days.
·Week 4 commencing on 16 July 2012: 3 hours per day for 3 days.
·Week 5 commencing on 23 July 2012: 3 hours per day for 2 days.
·Week 6 commencing on 30 July 2012: 3 hours per day for 3 days.
·Week 7 commencing on 6 August 2012: 4 hours per day for 3 days.
The program included a heading Your Schedule for Review which stated that the next review date would be 18 June 2012.
Ms J Cox made a written statement dated 5 August 2014 in which she said that she was employed by the respondent for about 37 years until 28 February 2014. In 2012 she worked as a rehabilitation case manager and had held that position for eight years. She said that she was aware that Ms Ripper had sustained a left leg injury in a motor vehicle accident in May 2001 and that liability for compensation was accepted by the respondent. Ms Cox said that in 2011 she arranged for Ms Ripper to be assessed by Dr Lewis regarding the potential benefits of her participating in a rehabilitation program. She stated that Dr Lewis found no barriers to Ms Ripper’s undertaking a program directed at increasing … [her] function for work activities. Assessment by a multi-disciplinary team at Epworth indicated that before beginning a PMP Ms Ripper needed to participate in a pre-program for four weeks, to commence on 5 March 2012. After a telephone case conference between Ms Cox, Ms Ripper, Ms Abrahams and Leanne Davis on 29 March 2012, it was decided that Ms Ripper would commence the PMP on 11 April 2012. Towards the end of that program a return to work program was devised by Ms Abrahams and reviewed by Dr Lewis.
Ms Cox stated that on 7 June 2012 she faxed Dr J Doswell, Ms Ripper’s general practitioner, a letter and a copy of the proposed rehabilitation upgrade program. In her letter Ms Cox asked Dr Doswell to advise of any medical reasons or other barriers that would prevent Ms Ripper following the proposed return to work program dated 18 May 2012. The letter indicated an intention to proceed with the program if no reply was received by 13 June 2012. She stated that she received an email from Ms Abrahams dated 8 June 2012 in which Ms Abrahams indicated that Dr Doswell had approved only 1.5 hours per week for the next three weeks. However the assessment team at Epworth still maintained that Ms Ripper had the capacity to work for two hours twice weekly. In the 8 June email Ms Abrahams also pointed out that Dr Doswell had not responded to a telephone message to discuss the matter, and that although Ms Ripper had telephoned that day to say that illness would prevent her from attending her appointment at Epworth, she had also indicated in her telephone message an intention to attend Epworth for three hours on each of 20 and 27 June and 4 July 2012.
Ms Cox said that she tried unsuccessfully to contact Dr Doswell by telephone on 13 June 2012 and on the same day she again sent the material by fax to Dr Doswell. On the basis of the return to work plan and in the absence of a reply from Dr Doswell she made her Determination of a Rehabilitation Program dated 15 June 2012. She said that she was aware of the provisions of s 37(3) of the SRC Act and had regard to all relevant factors when making the determination. She said that with respect to Ms Ripper’s attitude to the program she took note of the email from Ms Davis dated 15 June 2012 that Ms Ripper was accepting of the program.
Under cross-examination Ms Cox agreed that she had had no contact with Ms Ripper between 18 May 2012 and 15 June 2012. She said that she did not consider seeking a meeting with Dr Doswell and Ms Ripper by making an appointment at Dr Doswell’s clinic as had been done on 20 September 2011. She also agreed that Ms Davis did not state that Ms Ripper was accepting of the program, but had had in fact stated in her email of 15 June 2012 that Ms Ripper was calm and accepting of the process that was taking place. Ms Cox stated that she had received the recommendation from Epworth for two hours of work per week and had not considered addressing Dr Doswell’s concerns with her.
Ms L Davis made a written statement dated 5 August 2014 in which she said that she has been employed by the respondent for about 16 years as a rehabilitation consultant. She stated that she has been involved with Ms Ripper’s compensation and rehabilitation matters since at least 2009. Ms Davis told the Tribunal that she met with Dr Doswell and Ms Ripper on 20 September 2011 and discussed Ms Ripper’s capacity to participate in a graduated return to work program. Dr Doswell had suggested that a return to work program should await a recommendation from a pain management clinic.
Ms Davis told the Tribunal that she attended the case conference on 29 March 2012 in her role as a rehabilitation provider. Ms Abrahams, Ms Cox and Ms Ripper also attended. Notes prepared after the conference state that Ms Ripper had completed the four-week pre-program and would proceed to the full program to commence on 11 April 2012. The notes show further that Ms Ripper has stated that in the 4th week she started to feel stressed and anxious in regards to the case conference and the return to work process. The notes also record that Ms Ripper was concerned about what would happen at the end of the program if her function had not improved enough for a return to work. At the conference Ms Abrahams advised that that at the end of the seven-week program the aim was for Ms Ripper to return to work for two hours per day, twice per week in conjunction with the final four weeks of the program, with a goal of a return to work program which would be to leave work with no increase in pain levels.
Ms Davis said that she was aware that Ms Cox had sent details of the return to work recommendations to Dr Doswell and there had been difficulties in communicating with Dr Doswell. Ms Davis stated that Ms Cox asked her to prepare a rehabilitation upgrade program based on the Epworth recommendations of two hours’ work one day a week, increasing to two days on 18 June 2012, and this resulted in the program dated 15 June 2012. She said that her role after preparing the plan was to provide and/or facilitate the rehabilitation program it outlined.
Ms Davis stated that she met with Ms Ripper on 15 June 2012, the first day of the program, and explained the goals and requirements of the program, and that Ms Ripper had the right to request a reconsideration of the decision regarding the number of hours to be worked. Ms Davis stated that Ms Ripper said nothing untoward at the meeting and acknowledged the process but stated that she would follow the recommendations of Dr Doswell and was therefore prepared to work for 1.5 hours per week and not two hours as specified in the program.
Under cross-examination Ms Davis agreed that her involvement in the program commenced on 15 June 2012. She acknowledged that at the meeting with Dr Doswell and Ms Ripper on 20 September 2011 she had proposed that Ms Ripper commence a return to work for 1.5 hours rather than two hours, based on Ms Ripper’s statement that after two hours her pain levels increased significantly and that walking any distance was an issue. Ms Davis said that both Ms Ripper and Dr Doswell had agreed with this proposal, although subsequent experience with the PMP had led Epworth to recommend two hours of work. She said that there had been no response by Dr Doswell to the communications in June 2012, and that she had not considered making another appointment with Dr Doswell as had been done in September 2011.
Dr Doswell told the Tribunal that she has been Ms Ripper’s treating doctor for a long time and has dealt with the effects of the injury suffered in May 2001 for about 10 years. She said that she often works seven days a week and assists with orthopaedic surgery in the afternoons, as well as conducting a general practice. She explained that she was extremely busy when the documents were sent to her on 6 and 13 June 2012, and that she did not have time to prepare a response within the short time frame determined by the respondent.
Mr Carey, on behalf of Ms Ripper, submitted that the program of 15 June 2012 was not a valid rehabilitation program for the purposes of s 37(1) of the SRC Act because it failed to comply with the provisions of s 37(3) of the SRC Act. Firstly, it was submitted that the rehabilitation authority did not have regard to the employee’s attitude to the program as required by s 37(3)(f) in that no-one ever asked Ms Ripper about her attitude to the program. Ms Cox had not had any communication with Ms Ripper until after the commencement of the program.
Secondly, it was submitted that the rehabilitation authority did not have regard to any other relevant matter as prescribed by s 37(3)(h), namely the Rehabilitation Guidelines established by Comcare with effect from 1 September 2005. In particular, paragraph 10 of the Guidelines states that, where a return to work plan is part of a rehabilitation plan, the plan must be developed in consultation with the injured employee and the treating medical practitioner. Mr Carey said that this had not occurred during development of the program that commenced on 15 June 2012, as Ms Cox had not sent any proposed return to work program to Ms Ripper. Nor was the material sent to Dr Doswell on 7 June 2012 sent to Ms Ripper. Instead the program had been based solely on the Epworth proposal.
Consideration
In respect of s 37(3)(f) of the SRC Act, although communication between the respondent’s rehabilitation personnel and Ms Ripper throughout the process was not optimal, the Tribunal takes into account that Ms Ripper attended Dr Doswell on 20 September 2011 with Ms Davis to discuss Ms Ripper’s capacity to participate in a graduated return to work program. In February 2012 she attended Epworth for a pain management assessment by Dr Lewis, and in March 2012 she attended a pre-PMP once a week for four weeks. She attended a case conference on 29 March 2012 at which goals were set for a return to work in conjunction with the final weeks of the pre-program, and her concerns were discussed in the context of a proposal for two hours of work per day, twice weekly. The email from Ms Davis to Ms Cox dated 15 June 2012 stated that Ms Ripper was accepting of the process. On all the material the Tribunal finds that the rehabilitation authority had regard to the employee’s attitude to the program, so it satisfied s 37(3)(f) of the SRC Act.
In respect of s 37(3)(h) of the SRC Act, the Tribunal takes into account that Dr Doswell, as the treating medical practitioner, was consulted by the respondent on 20 September 2011 at the appointment attended by Ms Ripper and Ms Davis. The meeting discussed Ms Ripper’s capacity to participate in a graduated return to work program and any barriers that needed addressing to achieve this objective. Further consultation with Dr Doswell occurred on 7 June 2012 when Ms Cox sent her a letter and a copy of the proposed rehabilitation upgrade program. Unsuccessful attempts to contact Dr Doswell were made by Ms Abrahams and Epworth in May and June 2012. Ms Cox also made an unsuccessful attempt to contact Dr Doswell by telephone after faxing the material on 7 June 2012. She retransmitted the material on 13 June 2012 but again received no reply.
On all the material the Tribunal finds that the rehabilitation authority made reasonable attempts to consult Dr Doswell by attending the medical appointment with her on 20 September 2011, by sending the proposed program to her on two occasions and by making telephone calls to her clinic and leaving messages for her, none of which appears to have been answered. On this basis, and as a consequence of its finding that the rehabilitation authority had regard for Ms Ripper’s attitude to the program, the Tribunal finds that the rehabilitation authority had regard to any other relevant matter, so it satisfied s 37(3)(h) of the SRC Act.
As a consequence of its findings the Tribunal concludes that the rehabilitation program was a valid program for the purposes of the SRC Act.
WAS THE PROGRAM A SUITABLE PROGRAM IN ALL THE CIRCUMSTANCES?
Ms Ripper told the Tribunal that the rehabilitation program was not a suitable one. She said that she discussed the program with Dr Doswell, who told her that 1.5 hours of work per day once a week was all she would be able to manage. Ms Ripper stated that in the circumstances the program’s requirement that she work two hours per day for one day in the first week, for two days in the second fortnight and for three days in the third fortnight, followed by three hours per day in the fourth and fifth weeks was unrealistic and not achievable because she was unable to comply as a result of her ongoing pain. Ms Ripper noted that the program was drawn up by an occupational therapist and not a medical practitioner, and had not been reviewed or approved by Dr Doswell.
Dr A Sillcock, consultant occupational physician, stated in a report dated 3 October 2013 that Ms Ripper was suffering from recurrent deep vein thrombosis and a chronic pain syndrome and was totally incapacitated for work. She considered the rehabilitation program dated 7 June 2012 and stated that on initial examination the program seemed reasonable following the completion of the PMP. However the increases in working hours were quite rapid, especially as Ms Ripper had not worked for more than one year before commencing the program and had not been working full hours for three or four years before that. Dr Sillcock concluded that it seems to have been rather optimistic and indeed unreasonable to expect that…[Ms Ripper] would increase her working hours as specified in the program. She commented that there did not appear to have been an independent medical opinion supporting (or not) the return to work program before Ms Ripper’s benefits were suspended.
Dr Doswell stated in a report dated 11 March 2014 that Ms Ripper’s condition of chronic pain syndrome affecting the left lower leg and chronic venous insufficiency/venous hypertension affecting the leg has been affected and complicated by associated medical conditions such as the side-effects from the medication required for recurrent DVTs, depression and anxiety, restless legs syndrome, worsening asthma and hypertension, as well as gastrointestinal bleeding. She stated that Ms Ripper attended Dr T Lim in November 2010 for an assessment regarding the benefits of rehabilitation, and Dr Lim’s opinion was that no program was appropriate unless Ms Ripper could initially sustain a prescribed number of working hours each week.
Dr Doswell told the Tribunal that she referred Ms Ripper to Dr Lewis for an opinion on maximising any subsequent rehabilitation, and as a result Ms Ripper attended Epworth in February 2012 for a preliminary assessment for rehabilitation pain management. She completed a four-week pain management pre-program in March 2012 in a genuine attempt to participate in the PMP and to return to work. Dr Doswell said that Ms Ripper did not dispute the reasonableness of the program as prescribed on 7 June 2012. However, four days after commencing the program Ms Ripper reported a dramatic increase in pain, which persisted as the weeks progressed as a result of the physical and psychological interventions of the program. Dr Doswell reviewed Ms Ripper’s progress once or twice each month for at least six months, and noted that the assessment of Ms Ripper’s abilities was carried out by an occupational therapist.
Ms Abrahams told the Tribunal that when drawing up the program she and the multidisciplinary team took into account that Dr Doswell had issued Certificates of Capacity for Ms Ripper of 1.5 hours’ work per day. Nevertheless, the team’s conclusion was that Ms Ripper had a work capacity of two hours per day twice weekly, and this conclusion formed the basis of the recommendation, particularly as Ms Abrahams had been unable to discuss the matter with Dr Doswell because Dr Doswell had not returned her telephone call. Under cross-examination she agreed that in an email to Ms Cox dated 8 June 2012 she stated: Given today’s non-attendance [at Epworth] I am increasingly pessimistic regarding attaining positive work outcome with Jenny.
Dr M Bloom, occupational & environmental physician, stated in a report dated 23 April 2013 that he was unable to find a purely organic cause of…[Ms Ripper’s] perceived level of pain and disability. He concluded that she was suffering from a chronic pain syndrome, and said that the rehabilitation program was reasonable, safe and suitable for Ms Ripper.
Consideration
The program was devised after Ms Ripper had completed part of a PMP following a referral to Dr Lewis. Assessment of Ms Ripper’s work capacity, carried out by the multidisciplinary team consisting of an occupational therapist, a psychologist and a physiotherapist, concluded that Ms Ripper was capable of working for an initial two hours one day a week. Numerous unsuccessful attempts were made to contact Dr Doswell to discuss her view that 1.5 hours per day were the maximum that Ms Ripper could manage. The Tribunal takes into account that the difference between 1.5 hours certified by Dr Doswell and two hours recommended by the multidisciplinary team at Epworth is only 30 minutes. The program contained a provision for review beginning on 18 June 2012, and the agreement between Ms Ripper and the respondent, signed on 15 June 2012, specified that ongoing reviews would be conducted to assess Ms Ripper’s fitness for work during the period of the program. In all the circumstances the Tribunal finds that the program was flexible enough to accommodate Ms Ripper’s situation and was a suitable program for the purposes of s 37(1) of the SRC Act.
APPLICATION 2012/5442: DID MS RIPPER REFUSE OR FAIL TO UNDERTAKE THE REHABILITATION PROGRAM?
Ms Ripper told the Tribunal that on 15 June 2012 she attended her workplace in accordance with the program and told Ms Davis that following discussions with Dr Doswell she would follow the latter’s recommendation and work 1.5 hours on one day per week. She said that she advised Ms Davis that her tolerance for sitting at a workstation was 4.5 minutes and her tolerance for standing was 8.5 minutes, so she used a timer to remind herself to change posture when required. She acknowledged that Ms Davis informed her that the graduated return to work program might be affected if she worked less than the prescribed period of two hours per day.
Ms Ripper stated that after 1.5 hours on the first day of the program she experienced significant pain in her left leg, as well as swelling, a burning sensation in her ankle and pins and needles. She estimated that at the end of that day her pain was at a level of 10 out of 10 on the subjective scale. Nevertheless she returned the following week on 18 June 2012, as stipulated in the program, and managed to work 1.5 hours.
Ms Davis stated that on 22 June 2012 she spoke to Ms Ripper who told her that the workstation was suitable and the work provided was OK. In an email to Ms Cox dated 6 July 2012 she noted that Ms Ripper told her about feeling pain the previous week after one hour. Ms Davis recorded that Ms Ripper did not believe she could work the hours as per the proposed RTW plan. She also noted: Coping OK overall but has experienced increase[d] stress due to situation with rehab regarding her RTW.
In a file note dated 20 July 2012 after a meeting with Ms Ripper, Ms Davis recorded that Ms Ripper had reported pain at the end of work, and that after 1.5 hours the pain levels were up to 8/9 out of 10. It then take[s] a few hours for the pain to settle down.
Dr Doswell described Ms Ripper’s description of pain as genuine, as were her attempts to comply with the PMP and the Epworth rehabilitation upgrade program of 7 June 2012, to the best of her ability, from its commencement date of 15 June 2012. She said that she believed that the PMP was worth trying and that Ms Ripper had agreed to make the effort. Dr Doswell said that as she has been treating Ms Ripper for 10 years she was satisfied that Ms Ripper had been compliant with various treatment programs for chronic pain and other medical issues arising from the initial injury. She told the Tribunal that Ms Ripper enjoyed working for the respondent and was disappointed that her work capacity was limited.
Consideration
In the primary determination dated 10 July 2012 the decision-maker stated that Ms Ripper’s rights to compensation under the SRC Act were suspended because she had failed to commence the Rehabilitation and Return to Work Program dated 15 June 2012 In the reviewable decision dated 4 October 2012 the delegate stated that she was satisfied that Ms Ripper did not have a reasonable excuse for failing to comply with the rehabilitation program. Neither decision gave as a reason for the suspension that Ms Ripper had failed to undertake a rehabilitation program as specified in s 37(7) of the SRC Act.
There is no definition of undertake in the SRC Act. The Macquarie Dictionary defines undertake as: Verb (t) 1. To take on oneself (some task, performance, etc.); take in hand; essay; attempt.
In Ismailjee and Australian Postal Corporation [1995] AATA 555 the Tribunal found at [24] that for the purposes of the SRC Act undertake has the same meaning as perform, rather than begin or start. Other decisions have referred to the meaning of to undertake as to participate in (Freeman v Fleetmaster Services Pty Ltd [2013] FCA 1068 at [5]; Fairweather v Australian Postal Corporation [2009] FCA 1290 at [5]; Martiniello and Comcare [1994] AATA 507 at [34]; and Engelhard and Comcare [2009] AATA 194 at [2]); or to engage in (Pascoe and Australian Postal Corporation [2002] AATA 745 at [35]. The word undertake has also been found to be synonymous with to comply with (Australian Postal Corporation v Forgie [2003] FCAFC 223 at [87]; and Davis and Comcare [1997] AATA 406).
In the context of the SRC Act to undertake appears not to be synonymous with to complete. The Explanatory Memorandum accompanying the Commonwealth Employees’ Rehabilitation and Compensation Bill 1988 states in relation to Part III Clause 39: This clause provides that, if an employee is undertaking or has completed a rehabilitation program… Similarly, in relation to the amount per week that an employee is able to earn in suitable employment, s 19(4)(f) of the SRC Act states that Comcare is to have regard to whether the employee’s failure to accept an offer of employment, …to undertake, or to complete, a rehabilitation or vocational or retraining program…This view is also supported by the decision in Wilkinson and Australian Postal Corporation [1998] AATA 849 where the Tribunal referred at [89] to the situation where an employee is undertaking or has completed a rehabilitation program.
Consequently the Tribunal concludes that for the purposes of the SRC Act to undertake means more than to begin or to commence, but less than to complete. It is synonymous with to participate in or to engage in, and by inference requires a real or genuine level of commitment.
Ms Ripper attended her workplace on 15 June 2012 in accordance with the program. The Tribunal accepts her evidence that she performed her duties to the best of her ability, including using a timer to remind her to change posture as required, given that her sitting tolerance was 4.5 minutes and her standing tolerance was 8.5 minutes. The Tribunal also accepts that her pain levels after 1.5 hours were such that she was unable to continue. Ms Ripper attended the workplace on a further occasion in an effort to meet her obligations under the program, and this is consistent with her commitment to participate in other treatment programs to the best of her ability.
On all the material the Tribunal finds that Ms Ripper made a genuine and reasonable effort within her physical capability to fulfil her obligations under the program from 15 June 2012 until the decision of 10 July 2012 to suspend her compensation entitlements. She commenced the program, engaged in the program, participated in the program and managed to work for 1.5 hours of the two hours, which is 75 per cent of the stipulated amount of time. She complied substantially with the program. Therefore the Tribunal finds that Ms Ripper did not refuse or fail to undertake the rehabilitation program under s 37(7) of the SRC Act, and the correct or preferable decision is that her rights to compensation should not be suspended.
DID MS RIPPER HAVE A REASONABLE EXCUSE FOR FAILING OR REFUSING TO UNDERTAKE THE PROGRAM?
There is no need for the Tribunal to consider whether Ms Ripper had a reasonable excuse for refusing or failing to undertake the rehabilitation program under s 37(7) of the SRC Act in view of its finding that she did not fail or refuse to do so. However for the sake of completeness the Tribunal has given consideration to the issue.
Ms Cox stated that she became aware that Ms Ripper had not been complying fully with the provisions of the program. She requested that Ms Ripper provide reasons for this non-compliance and received a response dated and sent on 2 July 2012. The respondent then made a determination on 10 July 2012 suspending Ms Ripper’s compensation until Ms Ripper commenced the rehabilitation program.
Under cross-examination Ms Cox agreed that although she was aware that Ms Ripper had not complied fully with the program she did not contact Ms Ripper to discuss the issue. She agreed further that she did not contact Dr Doswell after Ms Ripper’s non-compliance of 15 June 2012. She said that she was not advised that Ms Ripper had reported increased levels of pain after attending work on 15 June 2012. She agreed that one of the goals of the program was that pain levels not increase as a result of a return to work.
Ms Davis said that a further discussion occurred on 22 June 2012 during which Ms Ripper said that the workstation and the work provided were suitable. Ms Davis explained that she again contacted Ms Ripper on 6 July 2012 and Ms Ripper said that because of increased levels of pain she did not believe that she could work the number of hours stipulated in the program, and as a result had worked only 1.5 hours per day.
Further discussions with Ms Ripper occurred on 20 July 2012, after which Ms Davis contacted Dr Doswell and arranged for Ms Ripper to attend Dr Doswell. Ms Davis said that she again discussed the program with Ms Ripper on 17 August 2012, when Ms Ripper advised she was still working 1.5 hours per day because of her pain level, and that Dr Doswell had not supported any increase in working hours.
On 18 June 2012 (the second day of Ms Ripper’s attendance under the program) Ms Cox commenced non-compliance action by requesting Ms Ripper to provide reasons for non-compliance. In a response dated 2 July 2012 Ms Ripper stated that she did not follow the program because the basis of the program was a recommendation from Epworth and was authorised by an occupational therapist, not a registered medical practitioner. She said that the plan was a guide only, which envisaged ongoing review of capacity and was dependent on Dr Doswell agreeing with the plan and following up with a relevant certificate of capacity. In addition she said that the original Pain Management Program Medical and Multidisciplinary Assessment Report and Treatment Plan by Epworth, dated 23 February 2012, stated that her general practitioner was to write certificates of capacity as appropriate for commencement of a return to work program.
Ms Ripper acknowledged that she told Ms Cox on 6 July 2012 that during the previous week she had felt pain at work after one hour and did not believe she could complete two hours as specified in the program, but had continued to work for 1.5 hours as specified in the certificate of capacity provided by her general practitioner.
54. Dr Sillcock stated in her report of 3 October 2013: I believe that it is highly unlikely that Ms Ripper was able to perform the rehabilitation program to its full extent. I believe that she had a reasonable excuse for failing to comply with it as she appears to have had increasing symptoms throughout this period.
Dr Doswell said that Ms Ripper did in fact attend and comply with the program, but was also compliant with her instructions to amend Ms Ripper’s working hours to minimise the impact on her worsening medical conditions.
Consideration
The Tribunal finds Ms Ripper to be a reliable and honest witness. She demonstrated a determination to continue to work despite her medical conditions and obvious pain, and her actions were consistent with her willingness to undertake reasonable treatment as recommended by various medical practitioners. The Tribunal takes into account that Dr Doswell maintained at all relevant times that Ms Ripper was capable of working 1.5 hours per week and not two hours as specified in the program. The Tribunal also takes into account that Ms Ripper commenced the program by attending on 15 June 2012 and also on another day.
The Tribunal accepts Ms Ripper’s evidence (supported by Dr Doswell) that Ms Ripper experienced continuing pain while attending the program on 15 June 2012 and was unable to work for more than 1.5 hours on that day.
The Tribunal takes into account that no review of the program appears to have been carried out on 18 June 2012 or any other date, contrary to the terms of the program, and that one of the goals of the program was that there be no increase in pain levels after working. In fact the Notice of Effects of Non-Compliance dated 18 June 2012 was issued just three days after the first scheduled day of the program. Although attempts to contact Dr Doswell were made on 6 and 13 June 2012 in relation to the appropriateness of the program, Ms Cox confirmed that no attempt was made to contact Dr Doswell after Ms Ripper’s attendance at the program on 15 June 2012 to assess Ms Ripper’s level of pain after working 1.5 hours or her ability to comply with the two-hour work requirement on subsequent days.
On all the material the Tribunal finds that Ms Ripper’s reasons for not fulfilling her obligations under the program constitute a reasonable excuse under s 37(7) of the SRC Act.
DECISION
Application 2012/5445: The Tribunal affirms the decision under review.
Application 2012/5442:
1. The Tribunal sets aside the decision under review and substitutes a decision that Ms Ripper has not refused or failed, without reasonable excuse, to undertake a rehabilitation program provided for her under s 37 of the Safety Rehabilitation and Compensation Act 1988 (SRC Act) and that her rights to compensation under the SRC Act should not be suspended.
2. Under s 67 of the SRC Act the respondent shall pay Ms Ripper’s compensation benefits from 10 July 2012 to the present date and at the present date under s 19 of the SRC Act and any other relevant section of the SRC Act.
| I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for the decision of G. D. Friedman, Senior Member |
..............................[Sgd].....................................
Associate
Dated 14 January 2015
| Dates of hearing | 6 and 7 August 2014, 17, 18 and 19 December 2014 |
| Counsel for the Applicant | Mr M Carey |
| Solicitors for the Applicant | Maurice Blackburn Lawyers |
| Counsel for the Respondent | Mr M Snell |
| Solicitors for the Respondent | Clarke Legal |
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