JFFZ and Comcare (Compensation) - [2022] AATA 2283

JFFZ and Comcare (Compensation) [2022] AATA 2283 (4 July 2022)
Division:GENERAL DIVISION
File Numbers:2020/4586
2020/6109
2021/7995

Re:JFFZ
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Member D Mitchell
Date:4 July 2022
Place:Brisbane

The Tribunal affirms the decisions under review.
................................[SGD].....................................
Member D Mitchell
Catchwords
COMPENSATION – accepted injury – rehabilitation – whether the Applicant is obliged to undertake the rehabilitation programs determined for her – whether the Applicant refused or failed to undertake the rehabilitation program – Applicant’s compensation payments suspended – whether the Applicant had a reasonable excuse for refusing or failing to undertake the rehabilitation program – decisions under review affirmed
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Cases
Australian Postal Corporation v Pascoe [2003] FCA 390
Cook and Comcare (Compensation) [2017] AATA 227
Cook and Telstra Corporation Limited [2003] AATA 786
McGuinness v Comcare (2007) 99 ALD 57
REASONS FOR DECISION
Member D Mitchell
4 July 2022
INTRODUCTION

JFFZ (the Applicant) was, up until she accepted a voluntary redundancy in September 2006, employed by the Department of Foreign Affairs and Trade (DFAT). Pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act), the Respondent accepted liability for the Applicant’s De Quevain’s Tenosynovitis (right) injury with a deemed date of injury of 6 March 2006 (accepted condition).
The applications before the Tribunal relate to the Applicant seeking review of the reviewable decision:
(a)dated 24 July 2020, which affirmed a determination dated 19 June 2020 that the Applicant was to undertake a rehabilitation program pursuant to section 37(1) of the SRC Act in relation to her accepted condition - AAT file 2020/4586;[1]
(b)dated 2 October 2020, which affirmed a determination dated 11 August 2020 that the Applicant refused or failed, without reasonable excuse, to undertake the rehabilitation program determined on 19 June 2020. The Applicant’s incapacity payments under section 19 of the SRC Act were suspended from the date of determination - AAT file 2020/6109;[2] and
(c)dated 22 October 2021, which affirmed a determination dated 30 August 2021 that the Applicant was to undertake a rehabilitation program pursuant to section 37(1) of the SRC Act in relation to her accepted condition - AAT file 2021/7995.[3]
[1]     Exhibit 1, T Documents, T125, pages 630-635, Reconsideration Decision – AAT file 2020/4586.
[2]     Exhibit 2, T Documents, T19, pages 79-84, Reconsideration Decision – AAT file 2020/6109.
[3]     Exhibit 3, T Documents, T52, pages 237-242, Reconsideration Decision – AAT file 2021/7995.
The evidence before the Tribunal includes T Documents for each application[4] and a Joint Hearing Book[5] provided by the parties which contains the Applicant’s statements and attachments[6] and the Respondent’s Statements of Facts, Issues and Contentions.[7]
[4]
[5]     Exhibit 4, Joint Hearing Book.
[6]     Exhibit 4, Joint Hearing Book, A1, Applicant’s statement (2020/4586 & 2020/6109); A2, Applicant’s supplementary statement (2020/4586 & 2020/6109); A3, Applicant’s statement (2021/7995) and A4, Applicant’s evidence (2020/4586 & 2020/6109).
[7]     Exhibit 4, Joint Hearing Book, R1, Respondent’s Statement of Issues, Facts and Contentions (2020/4586 & 2020/6109) and R2, Respondent’s Statement of Issues, Facts and Contentions (2021/7995).
THE LAW
Where an employee has suffered an injury resulting in an incapacity for work or an impairment, section 36 of the SRC Act deals with the assessment of their capability to undertake a rehabilitation program.
Specifically, section 36(1) of the SRC Act provides that the rehabilitation authority (in this case, DFAT, as the employer) may at any time, and shall on the written request of the employee, arrange for the assessment of the employee’s capability to undertaking a rehabilitation program.
The assessment is to be made by suitably qualified persons (who may or may not be a medical practitioner) nominated by the rehabilitation authority.[8] A report must be provided to the rehabilitation authority after the examination is completed.[9]
[8] Section 36(2) of the SRC Act.
[9] Section 36(8) of the SRC Act.
Such assessments have been provided over the years by both the Applicant’s general practitioners and various suitably qualified persons engaged by DFAT as the rehabilitation authority or by the Respondent.
Section 37 of the SRC Act provides the following with respect to the provision of a rehabilitation program:
(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.
(2) If a rehabilitation authority makes a determination under subsection (1), the authority may:
(a)provide a rehabilitation program for the employee itself; or
(b)make arrangements with an approved program provider for that provider to provide 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.
(7A) However, subsection (7) does not operate to suspend the employee’s right to compensation for the cost of medical treatment that is payable under section 16.
(8) Where an employee’s right to compensation is suspended under subsection (7), compensation is not payable in respect of the period of the suspension.
BACKGROUND
Having worked for DFAT for approximately 20 years, the Applicant took a voluntary redundancy in September 2006. The Applicant has not returned to full-time employment since.
In January 2007, the Applicant submitted a claim for compensation for her diagnosed condition of De Quierain’s Tenosynovitis for which liability was accepted by the Respondent in September 2008 as a result of an application being made to the Tribunal. The deemed date of the injury was 6 March 2006.
During the time that has expired between the injury being accepted and today, the Applicant has undertaken a number of rehabilitation programs. The Tribunal has had regard to the large number of documents before it and concludes that what the documents reveal are that to date, the rehabilitation programs have not been successful.
In the lead up to the rehabilitation programs to which these present applications relate, the Applicant had been assigned a number of different rehabilitation providers and had undertaken a number of work trials. It is clear to the Tribunal that the Applicant’s relationships with each of the providers and in some cases, the work trial managers, had during the time of their engagement become tense and unpleasant for all involved. The feedback provided in relation to the challenges faced with regards to seeking to carry out rehabilitation programs with the Applicant was all of a similar nature. That feedback was consistently disputed by the Applicant, who readily expressed her dissatisfaction with those involved in the rehabilitation process.
In a report dated 11 November 2019, Dr Will Talbot, orthopaedic surgeon diagnosed the Applicant with subacromial impingement and bursitis with AC joint arthritis (shoulder condition). Dr Talbot opined that the shoulder condition arose out of the repetitive duties of the Applicant’s work placement from 1 to 17 April 2019. Consequently, on

12 December 2019, the Respondent accepted liability for the Applicant’s shoulder condition.[10]
[10] Exhibit 4, Joint Hearing Book, A4, A115: Accepted claim subacromial bursitis (R), pages 355-359.
Dr Talbot formed the view that the Applicant’s shoulder condition affected the activities she was able to undertake. Dr Talbot recommended that modified duties and hours would be best determined by an extensive work-place assessment by an experienced occupational therapist or occupational physician. Dr Talbot opined that the Applicant could undertake a work trial or rehabilitation program as soon as possible with appropriate occupational therapist input to make sure appropriate tasks were undertaken.[11]
[11] Exhibit 4, Joint Hearing Book, R1, Respondent’s Statement of Issues, Facts and Contentions (2020/4586 & 2020/6109) pages 718-719, paragraph 3.10.
In a Rehabilitation Program Closure Report dated 6 February 2020, Ms Amanda Meggiorin of Advantage Injury Management Services (AIMS) outlined that the Applicant had been referred to AIMS for a vocational assessment and rehabilitation program with the view to assist in identifying appropriate employment options and to facilitate a return to work. Those services were provided by Ms Meggiorin commencing on 20 April 2018.[12]
[12] Exhibit 1, T Documents, T88, page 454, Report: Ms Meggiorin.
Ms Meggiorin outlined that AIMS sought to identify the Applicant a suitable work host to provide a work trial to promote relevant experience, references and job networking opportunities. However, despite numerous employers being identified, the Applicant found issues and barriers to each employer. Ms Meggiorin stated that after the feedback from the Applicant’s work trial, that was undertaken between 1 and 17 April 2019 regarding her administrative skills, the Applicant undertook 3 computer courses with the view of upgrading her knowledge of Microsoft Excel, Word and PowerPoint. Ms Meggiorin provided that the Applicant stated that she refused to engage in any further work trials and as such, it was recommended that a strong focus on job seeking and job search training be offered.[13]
[13] Exhibit 1, T Documents, T88, pages 454 – 456, Report: Ms Meggiorin.
Ms Meggiorin provided:[14]
Whilst [the Applicant] has performed the required and agreed upon job seeking activities, she has consistently and constantly made it quite clear that she has no respect for Ms Meggiorin or the advice that has been offered. [The Applicant] is hostile and confrontational during face to face and phone liaison, and at times has been verbally abusive to the provider. [The Applicant] is constantly argumentative in her correspondence, and her email etiquette is antagonistic and unfriendly. [The Applicant’s] poor attitude towards her rehabilitation program and Ms Meggiorin; and constant unwillingness to engage in the recommendations and education have posed a significant barrier to the success of Advantage Injury Management Services rehabilitation program. After working with [the Applicant] for 21 months it is clear that our working, therapeutic relationship has deteriorated, and a job seeking outcome unlikely.
…..
[The Applicant] continues to describe her age, time off work, and lack of referees as the major barrier to a successful return to work. In my opinion [the Applicant] has the skills, knowledge and experience to secure employment should she be willing and motivated to do so. However, it is recommended that successful engagement in a work trial or volunteer work could assist job seeking through provision of new references and a recent work history. A work trial or volunteer work would also promote job networking opportunities.
[14] Exhibit 1, T Documents, T88, page 456-457, Report: Ms Meggiorin.
On 6 March 2020, the Applicant provided a response refuting Ms Meggiorin’s Rehabilitation Closure Report.[15]
[15] Exhibit 1, T Documents, T90, pages 460-468, Applicant’s response to report at T88.
DFAT subsequently engaged 3DMind Solutions (3DMS) as the Applicant’s rehabilitation provider.[16] Having considered the documents before it, including the extensive submissions provided by the Applicant,[17] the Tribunal considers the following summary provided by the Respondent provides an appropriate outline of the establishment and implantation of the 3DMS rehabilitation programs:[18]
[16]    Exhibit 1, T Documents, T91, pages 492-503, Report: Ms Ansell.
[17]    Exhibit 4, Joint Hearing Book, A1, Applicant’s statement (2020/4586 & 2020/6109); A2, Applicant’s supplementary statement (2020/4586 & 2020/6109); and A4, Applicant’s evidence (2020/4586 & 2020/6109).
[18]    Exhibit 4, Joint Hearing Book, R1, Respondent’s Statement of Issues, Facts and Contentions (2020/4586 & 2020/6109), pages 720-729, paragraphs 3.16-3.56.
3DMS Vocational Assessment Report dated 12 March 2020 (T91)
3.16 3DMS were subsequently engaged as the Applicant’s Rehabilitation Provider. On 12 March 2020, Ms Ansell, Consultant/Rehabilitation Counsellor, provided a Vocational Assessment Report. After meeting with the Applicant, Ms Ansell concluded that the roles of medical receptionist, personal assistant and administration officer were suitable vocational options for the Applicant. Ms Ansell stated the Applicant identified her lack of recent employment experience, concerns as to her ability to job-seek independently and her age as barriers to finding employment. Ms Ansell opined the Applicant may hold unrealistic expectations about employment opportunities at a higher professional level than she can currently attain. Ms Ansell recommended the Applicant be provided with vocational counselling, a work trial and support to develop job seeking, interview skills and resume development to address these barriers.
3DMS Early Intervention Assessment Report dated 13 March 2020 (T92)
3.17 On 13 March 2020, Ms McKenna, Senior Consultant/Psychologist, provided an Early Intervention Assessment Report. Ms McKenna stated that during her assessment the Applicant reiterated her view that her lack of recent workforce experience, age and stage of career development made her ‘unemployable’. Ms McKenna stated the Applicant told her that she had been unfairly labelled as ‘unmotivated’ because she had been unable to successfully complete the voluntary work trials or transition into suitable employment, but she was just realistic about what roles are likely to be available to her. Ms McKenna stated the Applicant attributed her lack of success with the work trials to the work being very menial, unchallenging or not suited to her injury management considerations and said she was no longer willing to waste her time with completing another work trial.
3.18Ms McKenna stated the Applicant told her she wanted to be mentally challenged by her work and had high standards and indicated she would not be forced into what she considered to be any menial work. Ms McKenna identified the Applicant’s lack of confidence in finding a role and her lengthy absence from the workforce as significant barriers to her rehabilitation. She proposed targeted job search assistance and a voluntary work trial where suitable to assist in overcoming these barriers.
3DMS Functional Capacity Assessment (FCA) Report dated 13 March 2020 (T93)
3.19On 13 March 2020, Mr Wong, Exercise Physiologist provided a report with an attached functional capacity assessment dated 10 March 2020. Mr Wong commented that the Applicant participated in the Initial Assessment, Functional Capacity Assessment and Vocational Assessment on 10 March 2020 with 3DMS without any physical issues or limitations noted up to around 4 hours in total.
3.20Having assessed the Applicant and considered the medical evidence provided to him, Mr Wong opined the Applicant was fit to work 38 hours per week in one of the sedentary roles identified by Ms Ansell, provided she adhered to identified restrictions being: ‘no squatting, kneeling, twisting, crouching, sustained bending; no carrying and lifting more than 2kg with right arm, sustained gripping on right arm, overhead / shoulder-height tasks on right shoulder, sustained forward reaching on right shoulder.’
Applicant’s response to 3DMS reports
3.21By email dated 18 March 2020, the Applicant provided a response to the three 3DMS reports. In summary, the Applicant stated:
(a)The assessments had not considered the most up to date medical certificates, and as such she disputed the assessment findings;
(b)She would have happily continued working at the Royal Brisbane Hospital if she had been offered work which did not aggravate her thumb/wrist injury;
(c)She does not have unrealistic job expectations but will not be placed in meaningless work;
(d)She did not agree for the Rehabilitation Provider to research and canvass for prospective host employers but would comply with that requirement for the time it takes for her case to be heard by the AAT;
(e)She does not need assistance with resume or job search skills but needs targeted assistance in gaining employment around her age, disability, lack of references and time out of the work force and ‘having me apply for work on the open and able-bodied job market is a total waste of time’;
(f)The employer has obligations to find her suitable employment not just any employment;
(g)There is ample evidence on her file that shows very recent efforts on her part to seek out targeted programs that might assist her in achieving meaningful and sustainable employment;
(h)She does not believe she should be forced to engage in never-ending Rehabilitation Programs that don’t meet their goals and ‘it’s not about not doing something because I simply don’t want to do it’.
Draft Rehabilitation Program dated 20 March 2020 (T96)
3.22 The Applicant was provided a draft Rehabilitation Program on 20 March 2020 following the three assessments with 3DMS. Alan Burrows of DFAT, stated that given the Covid-19 situation it had been decided that ‘job seeking’ or a work trial would not be viable. Mr Burrows stated the program was developed to allow the Applicant to receive treatment and 3DMS would monitor the situation and the options would be reviewed in June 2020.
3.23 The Applicant responded on 20 March 2020 that she was dissatisfied with the terms of the Rehabilitation Program, specifically with the requirement that the rehabilitation provider liaise with her GP to monitor her participation in treatment and to monitor her recovery.
Rehabilitation Program dated 25 March 2020 (T99)
3.24 On 25 March 2020, the Applicant was provided with a copy of the new Rehabilitation Program. The requirement for monitoring of the Applicant’s regular daily routine was removed. However, the requirement for monitoring medical treatment and for the rehabilitation provider to liaise with the Applicant’s treating practitioners remained.
3.25 On 26 March 2020 the Applicant stated she considered the Rehabilitation Program to be nothing more than ‘unnecessary surveillance’ which implied that she had not complied with medical treatment in the past and that she needed to be closely watched.
3.26 On 17 April 2020, emails between Mr Burrows and Ms McKenna agreed that in light of the COVID-19 situation, the Applicant’s Rehabilitation Program ought to be extended, given its impact on the job market and the Applicant’s difficulties in receiving treatment for her subacromial bursitis condition had rendered her unable to participate in all aspects of the program effectively.
Medical Certificate dated 6 May 2020 (T102)
3.27 On 6 May 2020, Dr Jukes, General Practitioner, certified the Applicant fit to work in modified duties for 4 hours a day, 2 days a week. The Applicant was restricted to lifting no more than 2kgs with her right arm, no prolonged standing or sitting and no prolonged keying or repetitive movements with the affected limb.
Email from Applicant to Alan Burrows on 8 May 2020 (T105)
3.28By email dated 8 May 2020 to Mr Burrows, the Applicant stated that the purpose of a Rehabilitation Program is to set goals or targets in relation to re-employment but there are no such goals for the current program and the only goal of the program is ‘to provide ongoing support and monitoring’. The Applicant stated she was tired of being under constant surveillance, with Ms McKenna contacting her every fortnight to check up on her. The Applicant stated she would no longer answer any questions regarding the progress of her treatment as all the information required is contained in her medical certificates.
Email from Alan Burrows to the Applicant dated 13 May 2020 (T105)
3.29 By email dated 13 May 2020, Mr Burrows responded that the program was designed to monitor the Applicant’s recovery and to assess her fitness to commence job seeking activities. Mr Burrows stated that medical certificates provide limited information and he did not consider fortnightly phone calls to be intrusive. Mr Burrows further stated that while the Covid-19 situation limits employment opportunities it does not remove the Applicant’s obligations under the SRC Act to comply with the Rehabilitation Program. Mr Burrows put the Applicant on notice that if she refused or failed, without reasonable excuse to undertake the Rehabilitation Program her compensation payments may be suspended.
3.30 Between 14 May 2020 and 17 June 2020, the Applicant sent a number of emails to DFAT and her rehabilitation provider, all objecting to the level of ‘surveillance’ she was being subjected to, with respect to both her Rehabilitation Provider’s regular contact with her, and their request for information regarding the current status of her subacromial bursitis condition.
3DMS Progress Report dated 26 May 2020 (T04)
3.31 On 26 May 2020, Ms McKenna provided a progress report in which she relevantly stated:
(a)The Applicant stated she remains motivated and willing to work, however she also stated she was a realist and considers it unreasonable to be expected to engage in ongoing job search activity that was unlikely to translate into a return to work;
(b)3DMS confirmed that at the cessation of her Rehabilitation Program a new Rehabilitation Program would be developed with the goal of aiding a return to work;
(c)The Applicant said she would not sign any new Rehabilitation Program and would seek review of any such program with the AAT.
3.32 On 19 June 2020, the Applicant’s Rehabilitation Program dated 23 March 2020 was closed (T111).
AAT Application 2020/4586
3.33 On 19 June 2020, DFAT determined the Applicant should undertake a Program. The duration of the program was from 19 June 2020 to 23 June 2021. Relevantly, from 24 June 2020 to 6 September 2020 the Rehabilitation Program required the Applicant to undertake the following tasks (T110):
(a)Attending all vocational counselling sessions/discussions with 3DMS either in person, by skype or by telephone;
(b)Receive job search assistance including review of resume development and job search skills including drafting cover letters, addressing selection criteria and interview preparation and skill development;
(c)The Applicant is to commence job seeking activity with assistance from 3DMS from 7 September 2020;
(d)When medically and vocationally appropriate to do so the Applicant is to participate in a work trial to be sourced for her by 3DMS.
3.34 On 22 June 2020, the Applicant requested a reconsideration of that determination. The Applicant stated she did not agree with the Rehabilitation Program in its entirety. The Applicant stated the Rehabilitation Program is the same as every Rehabilitation Program before it and none of these programs have been successful in achieving the end goals.
3.35 The Applicant stated she did not agree with her following responsibilities under the Rehabilitation Program (T112/600):
(a)The requirement to attend vocational counselling sessions, as she considers this has been covered in recent and previous programs;
(b)The inclusion of resume development and job search assistance as she considers this has been covered in recent and previous programs;
(c)The requirement to provide copies of all job applications to 3DMS prior to submitting them, as she considers this to be a form of surveillance. The Applicant noted Jobseeker recipients are not required to do this;
(d)The requirement to apply for 2 to 4, with an increase to 4 to 5 jobs per fortnight which she considers to be totally unrealistic in her circumstances
(e) The requirement to participate in a further work trial, as this has been attempted several times without success and has in fact resulted in further injury.
3.36 The Applicant also did not agree with 3DMS having the following responsibility under the program (T112/600):
(a) 3DMS is to maintain regular contact with the Applicant to review progress with medical conditions on at least a fortnightly basis. The Applicant considered this to be a form of harassment.
3.37 The Applicant stated that she required a Rehabilitation Program ‘targeted at my specific set of barriers’ and requested ‘specialised assistance’ to find employment.
3.38 The Applicant further stated the following in response to the factors in s37(3) (a) to (h):
(a)That DFAT acted on recommendations of the rehabilitation provider is a lie as everything in the Rehabilitation Program was predetermined;
(b)The program is not designed to assist her in finding paid employment and its only purpose is to have her doing something, anything, to justify her incapacity payments;
(c)The cost of the program is an extraordinary waste of money as rehabilitation providers take on any case even those that have no chance of success;
(d)The Rehabilitation Program is not designed to increase her job-seeking skills or to assist her. Its only purpose is to have her do something, anything, to justify her incapacity payments;
(e)Having her go through the ritual of applying for work on the open job market, knowing I have no chance of success, will have detrimental effects on her mental health;
(f)Her attitude to the program has not been considered at all.
(g)The Rehabilitation Program does not meet the requirements of a successful Rehabilitation Program and it absolutely is not the best option for her.
3.39 On 3 July 2020, DFAT provided a statement in response to the Applicant’s request for reconsideration. DFAT considered that it and the rehabilitation providers it has engaged have taken reasonable steps in the development of the Rehabilitation Programs for the Applicant and to encourage her involvement in the return to work process (T118).
3.40By reviewable decision dated 24 July 2020, the Rehabilitation Program dated 19 June 2020 was affirmed.
AAT Application 2019/6109
Emails between Applicant and Sarah Sabani, 3DMS employment consultant (T6 2020/6109)
3.41 In an email exchange on 6 July 2020 with Ms Sabani to arrange a suitable time for the first counselling session under the Rehabilitation Program, the Applicant stated ‘I’ve essentially been told that I need to participate. To me it is a total waste of time because I’ve covered all this before’. The Applicant stated ‘I’m happy with my resume and generic cover letter which changes a little depending on the job applied for. I absolutely will not lie on my resume nor will I withhold important information in my cover letter’. The Applicant further stated ‘All this is just fluff and unfortunately you can’t help me with the assistance I really need. What I need is disability employment services similar to DES providers available through Centrelink’ and ‘applying for work on the open job market is futile’. The Applicant listed the following barriers she is facing:
(a)She has no way of knowing when applying for a job how much keyboard/computer/repetitive work is involved. If she is upfront in her cover letter or during an interview that she has an injury she never hears back.
(b)Even if ‘hurdle number 1 is overcome’, she is still a massive disadvantage as a mature age applicant. Employers who are willing to take on mature age workers are eligible to claim a Government subsidy so there is no incentive for them to hire her over those applicants.
Telephone call with Ms Sabani on 7 July 2020 (T7; 2020/6109)
3.42 On 7 July 2020 the Applicant had her first counselling session with Ms Sabani of 3DMS. By email of the same date Ms Sabani informed Ms McKenna that the Applicant declined assistance with her resume, job applications, discounted the role of work trials in her rehabilitation and refused to participate in mock interviews.
3.43 By email dated 7 July 2020, the Applicant informed Ms McKenna of her discussion with Ms Sabani (T8; 2020/6109). Relevantly, the Applicant stated:
(a)The discussion was specifically related to the activity in the Rehabilitation Program to be undertaken from 24 June to 6 September 2020. Specifically, job search assistance including review of resume development and job skills including completion of cover letters, addressing selection criteria, interview preparation and skill development.
(b)She told Ms Sabani she did not need help with the preparation of her resume or cover letter and she did not want someone else writing those for her.
(c)She said it was agreed that she would forward the resume and cover letter to Ms Sabani for her to look at and suggest changes which the Applicant could implement if she wanted to.
(d)She told Ms Sabani she was not interested in interview coaching as she found mock interviews childish.
(e)She told Ms Sabani about her work trial history and said she was not interested in doing another work trial and that she would not provide her with a list of the companies she would like to do a work trial with.
3.44 The Applicant stated that Ms Sabani was argumentative, dictatorial and aggressive in tone and told her she was contradicting herself when she said she wanted to work but did not want assistance in finding work. The Applicant stated Ms Sabani lacked ‘the basic understanding that I want to work but that I am entitled to meaningful work’ and not wanting assistance with finding work was not the same as not wanting to work. The Applicant stated she told Ms Sabani she was only attending the counselling sessions because she had to and that she did not want job search assistance because she had gone through it all before (T8; 2020/6109).
Email from Mr Wong to Mr Burrows on 7 July 2020 (T122 page 625)
3.45By email dated 7 July 2020, Mr Wong notified Mr Burrows that it had come to his attention that the Applicant’s behaviour and attitude continue to be inappropriate and the Applicant had earlier that day demonstrated a very argumentative and obstructive demeanour to Ms Sabani. Mr Wong stated that Ms Sabani would no longer be providing the job-search and placement assistance to the Applicant. Mr Wong stated Ms McKenna would remain involved in the Applicant’s Rehabilitation Program.
Notice of intention to suspend incapacity payments dated 14 July 2020 (T121)
3.46 As a result of the telephone conversation on 7 July 2020, and Mr Wong’s email, Mr Dean of DFAT advised the Applicant by letter dated 14 July 2020 of DFAT’s intention to suspend her incapacity payments under 37(7) of the SRC Act. Mr Dean stated that Ms Sabani had notified DFAT that the Applicant was:
(a)Very rude and abrupt;
(b)Declined assistance with job preparation and job searching;
(c)Indicated that she would not do another work trial;
(d)Stated mock interviews are immature and a complete waste of time;
(e)Left her with the impression she did not want any help, would jeopardise any placement and her attitude is unhealthy for anyone she liaises with.
3.47 Mr Dean stated that it appeared on the information provided by 3DMS the Applicant had refused or failed to undertake the agreed Rehabilitation Program provided for her. Mr Dean stated the Applicant must commence or recommence her Rehabilitation Program and work in accordance with the return to work schedule of hours and to advise in writing any reasons she has for refusing or failing to do so including documented evidence to support her claim.
Applicant’s response to notice of intention to suspend incapacity payments dated 15 July 2020 (T122 page 622)
3.48 By email dated 15 July 2020 the Applicant stated that Mr Burrows deliberately chose the documents he sent to 3DMS with the referral to show her in the most negative light he possibly could. The Applicant stated:
(a)‘I know it suits your purposes to continue to perpetuate the myth that I have had strained relationships with all rehab providers in the past, which with this provider, has created an additional set of issues because they took that on board and have run with it. My relationship with every provider in the past started out perfectly and only deteriorated towards the end when I put pressure on them to perform and called them out for their inability to deliver on the end goals’.
(b)There was no fresh approach by 3DMS;
(c)Mr Burrows has absolutely no interest in supporting her to find meaningful and suitable employment and his only goal was to have her do anything to justify her incapacity payments which has meant endless unsuitable work trials because he knows that at her age that is the only work she can get;
(d)There is nothing professional about 3DMS and nothing they do is in her best interests;
(e)The allegations made against her are frivolous and vexatious.
3.49 On 28 July 2020 the Applicant provided a response to DFAT’s letter dated 14 July 2020 and Ms Sabani’s email to DFAT dated 7 June 2020. Most relevantly the Applicant stated:
(a)DFAT’s claims were frivolous, vexatious and contrived;
(b)The decision to remove Ms Sabani’s assistance in job searching and placement was made by 3DMS before the telephone conversation;
(c)She was not rude and abrupt with Ms Sabani, she was direct and assertive;
(d)She did not decline assistance, stating ‘I absolutely did not decline assistance with job preparation and job searching. The option was given to me, over and over and over, to decline assistance with updating my resume and cover letter as they currently stood and to not participate in mock interviews. I did not decline assistance with job preparation and job searching for the entirety of the Rehabilitation Program as it progressed’;
(e)‘I absolutely did not say that I would not do another work trial. I said I didn’t want to do another work trial which is an entirely different thing’.
(f)She told Ms Sabani she wanted targeted assistance, in particular, dedicated disability employment services similar to what Centrelink recipients receive, which refers to finding paid employment not work trials;
(g)She told Ms Sabani she found mock interviews childish and she did not need interview coaching, it is optional and is not essential. She said she was told by her previous rehabilitation provider that she handled questions during a disability employment placement interview very well;
(h)She told Ms Sabani that job searching on the open market was futile because of her age and disability;
(i)She tried several times to ‘get through to her [Ms Sabani] that what she was offering is either not required or is not going to win me a job i.e. resume and cover letter update and supervision of job searching on the open market when it comes to that stage.
3.50 By determination dated 11 August 2020 the Applicant was notified by DFAT that her compensation payments, other than for medical treatment, had been suspended under s37(7) of the SRC Act from the date of the determination, on the basis that she ‘failed, refused to undertake or continue with’ the Rehabilitation Program provided to her on 19 June 2020 as conversation with Ms Sabani on 7 July 2020 (T14).
3.51 DFAT also referred to similar comments made by the previous rehabilitation provider in the Rehabilitation Closure Report dated 6 February 2020 and in a letter from Ms Bogaart of Lung Foundation Australia, where the Applicant’s last work trial was ceased at Ms Bogaart’s request. DFAT stated that the report and letter showed a pattern of behaviour and attitude on the Applicant’s part which has obstructed the rehabilitation process and had potential to cause harm to others.
3.52 DFAT determined that given the history of the barriers and delays in progressing the Applicant’s Rehabilitation Program, an Independent Medical Examination (IME) would be arranged for the Applicant under s 36 of the SRC Act to assess her clinical needs and capacity to participate in a Rehabilitation Program.
3.53 DFAT stated it would consider the Applicant has recommenced her participation in the Rehabilitation Program when she attended and participated fully in the s36 assessment that would be arranged for her.
3.54 On 12 August 2020 the Applicant requested a reconsideration of the determination dated 11 August 2020. The Applicant stated the determination was invalid because it referred to new evidence, that is, historical information that was irrelevant to the current Rehabilitation Program and added an entirely new condition for her to become compliant with the Rehabilitation Program namely attendance at a s36 rehabilitation assessment/examination. The Applicant stated she was not afforded procedural fairness. The Applicant stated, ‘you will never prove that I have obstructed or hindered the rehabilitation process because I haven’t’.
Report of Dr Navin, occupational physician, dated 2 September 2020
3.55 On 21 August 2020 the Applicant attended a s36 assessment with Dr Navin, occupational physician. In his report dated 2 September 2020, Dr Navin relevantly stated:
•The Applicant’s accepted right shoulder condition is a posture-related mechanical compression of the acromioclavicular joint which would be addressed by a strengthening and conditioning program directed to her posture with a variety of exercises that could be provided to her by her GP. The condition is not work related.
•The de Quervain’s in his experience should have resolved with the passage of time and the absence of activity of the use of the thumb.
•The Applicant has not been provided advice regarding a self-managed stretching program. It could be assumed that the situation with respect to the thumb is now considered fixed.
•As outlined in the report of Dr Talbot there is no restriction in the range and function of the right wrist and digits. The persistence of her symptoms requires further investigation.
•Implicitly the Applicant could engage in employment.
•The Applicant reported that she was about to undergo a sequence of investigations with respect to [a medical condition], particularly in terms of cardiac and respiratory components which may impair her capacity to be employed.
•Consistent with her unfit status, her capacity to walk is associated with a general level of physical deconditioning and this is reflected in the global decrease in the strength and power in the right limb.
•The Applicant could participate in a Rehabilitation Program between now and the outcome of her [medical condition]. Dr Navin suggested a graduated exercise program which could be managed through an Exercise Physiologist.
•The Applicant could be employed but she would need a Rehabilitation Program prior to that reflecting her underlying [medical condition] and could be reviewed in 3 to 4 months’ time to assess the benefit of the various interventions.
•The Applicant’s medical restriction would appear to be related to the [medical condition] and is not related to any work-related injury. Therefore, the Applicant can commence a Rehabilitation Program.
•The Applicant reported that she was of the view there was no option for her to return to work due to her upper limb pain.
3.56 By email dated 21 August 2020 the Applicant was notified that as she had complied with the requirements in the determination dated 11 August 2020, that is, attending the IME with Dr Navin, the suspension of her entitlements under subsection 37(7) of the SRC Act was lifted.
3.57 By reviewable decision 2 October 2020 the determination dated 11 August 2020 was affirmed. The review officer found that the determination to suspend the Applicant’s payments was based on the conversation the Applicant had with Ms Sabani on 7 July 2020, not the ‘historical information’ referred to in the determination. The review officer stated that the employing agency was documenting a pattern of behaviour which they considered hindered and obstructed the rehabilitation process generally.

The Applicant sought review of the reviewable decisions by way of applications to this Tribunal dated 29 July 2020[19] and 3 October 2020[20] respectively.
[19] Exhibit 1, T Documents (2020/4586) T2, pages 7-11, Application for Review.
[20] Exhibit 2, T Documents (2020/6109), T2, pages 5-15, Application for Review.
In a report dated 9 December 2020,[21] the Applicant’s general practitioner, Dr Jukes reported that:[22]
(a)The Applicant’s shoulder pain has largely resolved with treatment. She continues to have some wrist pain which has been continuous since the initial injury. It is not severe and the Applicant should be able to do suitable work.
(b)The Applicant’s other medical conditions, namely joint pains was due to osteoarthritis and inflammatory arthritis, shortness of breath due to the effects of [the medical condition] and general deconditioning, are more responsible for her inability to work.
(c)He strongly agreed that a rehabilitation programme is desirable both to allow the Applicant to return to work as well as for her general health.
(d) A graduated exercise programme with the supervision of an exercise physiologist would be ideal.
[21] Exhibit 3, T Documents (2021/7995), T32, pages 138-139, Letter: Dr Dukes.
[22] As summarised at R2, Respondent’s Statement of Issues, Facts and Contentions (2021/7995), page 738, paragraph 3.30.
On 18 November 2020, Ms Colby, occupational therapist provided a report stating that the Applicant’s symptoms were consistent with the injury and recommended that a splint and regular participation in a home exercise program to increase AROM and function would aid in the Applicant’s return to work.[23]
[23] Exhibit 3, T Documents (2021/7995), T20, pages 87-88, Therapy Report: Emma Colby.
3DMS and Ms McKenna continued to provide rehabilitation services to the Applicant in accordance with the 19 June 2020 Rehabilitation Program, providing progress reports up until its closure on 23 June 2021.[24] The Applicant disputed aspects of Ms McKenna’s progress reports and during that period exchanged a number of emails with DFAT.[25]
[24] Exhibit 3, T Documents (2021/7995), T38, page 175, Rehabilitation program closure report.
[25] Summary provided at Exhibit 4, Joint Hearing Book, R2, Respondent’s Statement of Issues, Facts and Contentions (2021/7995), pages 734-739, paragraphs 3.6-3.39.
On 22 June 2021, Ms McKenna provided a Rehabilitation Program Closure Report.[26] Along with an overview of 3DMS’s involvement with the Applicant, Ms McKenna stated:[27]
(a)The Applicant’s medical condition is not reported to have improved or changed during the rehabilitation program. Her capacity to engage in suitable paid work remained significantly impacted by this medical condition.
(b)Additionally, the Applicant has demonstrated consistent ability to apply for work, and with no further intervention being requested or provided during the rehabilitation program.
(c)Given these factors and as the Applicant has demonstrated an ability to independently seek suitable paid employment, no further rehabilitation assistance is required. For this reason, rehabilitation assistance is being finalised.
[26] Exhibit 3, T Documents (2021/7995), T39, pages 178-185, 3DMS Closure Report by Ms McKenna.
[27] As summarised at Exhibit 4, Joint Hearing Book, R2, Respondent’s Statement of Issues, Facts and Contentions (2021/7995), page 740, paragraph 3.41.
In the Rehabilitation Program Closure Record dated 23 June 2021, Ms McKenna provided the following closure comments:[28]
[The Applicant] has maintained compliance with job search activity during the previous 12 months. She has demonstrated an ability to independently seek suitable work and further upskilling in this regard is not required. Continuation of the current rehabilitation program is not considered necessary at this time. For this reason, the rehabilitation program is being finalised.
[28] Exhibit 3, T Documents (2021/7995), T38, page 175, Rehabilitation program closure record.
On 9 July 2021, the Applicant provided comments in response to the closure report and stated:[29]
The Rehabilitation Program Closure Record stated the reason for closing the program as "employee is temporarily incapacitated for work". That is not correct. I do not agree with the above statement made by Carmel McKenna in her report nor the reason given in the rehabilitation program record. The correct descriptor should have been "employee is partially incapacitated but unable to be placed in suitable employment".
……
DFAT, and Carmel McKenna, were both therefore aware that the shoulder injury had resolved before you both agreed, without any consultation with me whatsoever, to close the rehabilitation program. You were also both aware of my restrictions in terms of claim 947975/2 - de Quervain's tenosynovitis (right) – which are listed in my current and prior medical certificates. In terms of that injury I have maintained a partial capacity for work for many years so long as that work took account of my restrictions. Your reason for closing the program - because I am temporarily incapacitated for work - was therefore unfounded and completely false.
The true reason why you chose to close the rehabilitation program at this time remains unreported, of course, but it most certainly wasn't because I am temporarily incapacitated for work and that I can independently job search. In terms of the latter, I had proven that many times previously over your various rehabilitation programs but you still insisted that I undergo resume and job search assistance in subsequent rehabilitation programs including this one.
[29] Exhibit 3, T Documents (2021/7995), T42, page 188, Email: Applicant to DFAT – closure of rehabilitation report.
On 11 August 2021, DFAT, as the rehabilitation authority, advised the Applicant that rather than engage a further workplace rehabilitation provider, it would develop an in-house rehabilitation program.[30] DFAT provided the Applicant with a draft rehabilitation program for the period 30 August 2021 to 30 August 2022 for consideration and comment.[31]
[30] Exhibit 3, T Documents (2021/7995), T44, page 193, Email: Alan Burrows to Applicant.
[31] Exhibit 3, T Documents (2021/7995), T44, pages 194-200, Draft rehabilitation program and Appendix 1.
On 23 August 2021, the Applicant responded to DFAT providing that she did not agree with the draft rehabilitation program in its entirety and stated:[32]
It is nothing more than surveillance regarding job seeking and in no way is it structured to address the issues of why I have been unsuccessful in finding work on my own. That I am able to job search independently is not the issue; the barriers surrounding my not being able to seek employment on my own have been well documented by me.
Your obligation is to assist me to find work not to supervise me in what has been proven to be a fruitless effort on my part to find suitable and sustainable employment on my own. At the very least that should include a rehabilitation provider who has contacts or who is able to tap into the disability employment network. None of your recent providers have been equipped to do that.
Finally, your draft rehabilitation program is a gross misrepresentation of the intent as to what constitutes a rehabilitation program according to both Comcare guidelines and the SRC Act.
[32] Exhibit 3, T Documents (2021/7995), T45, page 201, Applicant email response to draft rehabilitation program.
By determination dated 30 August 2021, the final rehabilitation program was implemented.[33] The rehabilitation program runs for 12 months as an in-house managed program with the final goal in terms of workplace, duties and hours as being for the Applicant to ‘return to work with new employer consistent with medical restrictions.’[34]
[33] Exhibit 3, T Documents (2021/7995), T46, pages 203-211.
[34] Exhibit 3, T Documents (2021/7995), T46, page 207, Attachment: Determination.
The Applicant’s responsibilities set out in the rehabilitation program were to job seek, lodge two to four job applications per fortnight and provide copies of her applications and proof of lodgement to DFAT.[35] DFAT was required to monitor and evaluate the rehabilitation program, maintain regular contact with the Applicant to review progress with medical conditions and support her ongoing job search and preparation activity.[36]
[35] Exhibit 3, T Documents (2021/7995), T46, page, 210, Attachment 1 to rehabilitation program – Applicant’s responsibilities.
[36] Exhibit 3, T Documents (2021/7995), T46, page 207, Attachment: Determination.
On 30 August 2022, the Applicant emailed DFAT stating that the activity they were requiring her to do ’is just another attempt on your part to have me do anything, something, to justify my incapacity payments.’[37]
[37] Exhibit 3, T Documents (2021/7995), T47, page 212, Emails between Applicant and Alan Burrows – response to rehabilitation program.
On 16 September 2021, the Applicant submitted a request for reconsideration of the determination made on 30 August 2021. The Applicant provided:[38]
I do not agree with the rehabilitation program in its entirely. The program is nothing more than surveillance of job searching activities by me with no targeted assistance provided whatsoever around my set of barriers. Those barriers have been articulated by me, as well as by some rehabilitation providers in the past, to both Comcare and DFAT. That information is on my file and I will not be duplicating it here. It also forms a part of my current AAT applications. Comcare has a copy of all my submissions in relation to those applications.
…
In formulating the rehabilitation program DFAT appears to be taking the view that I have refused all assistance from every rehabilitation provider they have engaged in the past and as such they are entitled to do nothing now other than to keep me under surveillance to ensure that I job search. This is done for no reason other than to exert authority and to have me do something, anything, to justify my incapacity payments.
[38] Exhibit 3, T Documents (2021/7995), T48, page 219, Attachment: Reasons for request.
On 22 October 2021, on reconsideration the Respondent made a reviewable decision, affirming the determination dated 30 August 2021.[39]
[39] Exhibit 3, T Documents (2021/7995), T52, pages 237-242, Reviewable decision.
The Applicant sought review of that reviewable decision by way of an application to this Tribunal dated 26 October 2021.[40]
[40] Exhibit 3, T Documents (2021/7995), T2, pages 8-12, Application for Review.
A Hearing was held on 30 March 2022 in relation to the Applicant’s three applications for review. The Applicant, who appeared in person, was self-represented and gave evidence under affirmation. The Respondent was represented by Mr Charles Clarke of Counsel.
ISSUES
The issues before the Tribunal are:
1.Whether, in determining that the Applicant undertake the rehabilitation program dated 19 June 2020, DFAT as the rehabilitation authority had appropriate regard to the factors set out in section 37(3) of the SRC Act and if so, whether the rehabilitation program was reasonable having regard to those factors.[41]
2.Whether the Applicant’s incapacity payments should have been suspended pursuant to section 37(7) of the SRC Act on 11 August 2020.[42] Specifically:
a)whether the Applicant refused or failed to participate in the rehabilitation program, which was determined on 19 June 2020 and if so,
b)whether the Applicant refused or failed to undertake the rehabilitation program without reasonable excuse.
3.Whether, in determining that the Applicant undertake the rehabilitation program dated 30 August 2021, DFAT as the rehabilitation authority had appropriate regard to the factors set out in section 37(3) of the SRC Act and if so, whether the rehabilitation program was reasonable having regard to those factors.[43]
EVIDENCE AND CONTENTIONS
[41]    This issue relates to AAT file 2020/4586.
[42]    This issue relates to AAT file 2020/6109.
[43]    This issue relates to AAT file 2021/7995.
Evidence and contentions of the Applicant
The Applicant sought to rely on her written statements and the attached documents as well as the T Documents. The Tribunal notes that the statements and attachments (which include documents A1-A190) provided by the Applicant were, while voluminous, very well set out and cross referenced.
The Applicant’s evidence at Hearing was consistent with that which she had provided in her written statements.
At Hearing, the Applicant told the Tribunal that she is not anti-rehabilitation, rather she instigated the first three rehabilitation programs. She said that the allegations of inappropriate behaviour towards the last two rehabilitation providers were never investigated and there were no issues with the first four providers, the programs just petered out naturally.[44]
[44] Transcript of 30 March 2022, page 10.
The Applicant told the Tribunal that she was not given an opportunity to recommence a rehabilitation program in the situation that led to her incapacity payments being suspended. She said that the conditions of employment that she has to meet with regard to work trials and paid employment do not take into account of her own work preferences and safety.[45]
[45] Transcript of 30 March 2022, pages 10-11.
The Applicant told the Tribunal that the rehabilitation providers have been unable to deliver rather than her refusing their assistance. She said the two rehabilitation programs before the Tribunal contradict each other. The first one said she needs assistance with job search and writing resumes and the second one confirmed what she has said all along, that she did not.[46]
[46] Transcript of 30 March 2022, page 11.
The Applicant said:[47]
Well, I think that we are up to the sixth rehabilitation program, and they just haven’t been able to deliver. How long do we have to continue doing this without getting a result? I just find it useless. Okay, I can apply for jobs, I can send in that I’ve applied, but what is the point when I don’t feel that I’m going to be successful in those applications?
[47] Transcript of 30 March 2022, page 11.
The Applicant told the Tribunal it is not true that she had not been employed for the entire period. She said she undertook three different courses of study, one of them was an entire year. She did a lot of agency work, she worked from home as a medical transcriptionist, she did voluntary work and made plenty of efforts on her own. She said if she did not want to work, why would she have gone to DFAT on three separate occasions asking for assistance.[48]
[48] Transcript of 30 March 2022, page 11.
On cross examination, the Applicant:[49]
[49] Transcript of 30 March 2022, pages 11-21.
·Confirmed that she did a work trial with the Lung Foundation and agreed that it ended in fairly acrimonious circumstances.
·When asked whether she thought the host employer was responsible for that, said that she would say it was a combination of the rehabilitation provider and the host employer.
·When asked if she attributed any blame to herself in respect of what occurred, said, “not to the final outcome, no”.
·Agreed that her relationship with AIMS ended in fairly acrimonious circumstances.
·Said that the relationship started out very well and it was only toward the end of that engagement that things deteriorated.
·When asked what did she say to the comments made by Ms Meggiorin (as reproduced in paragraph 19 above – specifically referenced at paragraph 3.13 of the quoted material) in the AIMS Rehabilitation Closure Report found at T88, page 456, that:
What I say to that is that was at the end of a very lengthy engagement with AIMS, I think it went for almost two years, and it did deteriorate towards the end because she was doing things behind my back, she had agreed that we had reached the end of the road in terms of work trials and paid employment, yet she kept recommending that the program be extended and so on, and so on. I don’t agree with her saying that I was verbally abusive. If I was, why wasn’t that reported and investigated by DFAT.
·Agreed that poor behaviour on her part was reported in the closure report but said she does not agree with it.
·When asked about her references to Carmel McKenna from 3DMS calling her every fortnight, said that such contact was onerous in the context of no other previous provider had ever called her every single fortnight to ask if her wrist was any better, when it is a chronic condition and the same medical certificate had been issued for years and years regarding it saying it was never going to get any better.
·When put to her that it was only every fortnight, said that, to her it was surveillance when no one else had done it and what was the point.
·Said she did not initially take exception to the calls however when it continued fortnight after fortnight, she did not think it was necessary.
·When put to her that she had refused to undertake the job search assistance offered by 3DMS, said she did not refuse assistance, she was given the option as to whether she wanted to take it up or not.
·When taken to T7, page 31 that outlines Ms Sabani’s record of their telephone call, said that Ms Sabani got annoyed during the call because she had asked her about her qualifications.
·When asked if she thought she was being provocative in that regards, said, “No, not at all.”
·Said that she did not agree with all of what Ms Sabani had recorded and that the incident was not investigated. She said, “they gave their version, I gave my version, but what they said was what DFAT acted on.”
·Said she was expecting DFAT to investigate the incident because it led to suspension of incapacity payments. She expected DFAT would do more of an investigation rather than just take the word of the rehabilitation providers.
·When asked about the DFAT in-house rehabilitation program and it was put to her that the extent of her responsibilities was to apply for some jobs and give evidence to DFAT that she had made those applications, agreed that was correct.
·When put to her that, that was not an onerous task, said:
It’s not an onerous task, but it wasn’t a task that was going to get results. It didn’t address my barriers. I can apply for any number of – anyone can apply for jobs, it doesn’t mean you are going to be successful. What is the point of continually applying for positions knowing that you are not going to get an interview…. to answer your question, no, it is not onerous but it was a pointless task.
·When put to her that her starting point was that any reporting of any job seeking activities was surveillance, agreed that it was surveillance and pointless.
·When an email provided at T47, page 215 that she wrote to DFAT that asked her case manager to provide details of his current experience of the job market outside of the Australian Public Service and stated that she suspected that no other rehabilitation unit has any relevant experience at all, was put to her and she was asked if she considered she was being unnecessarily provocative, said not at all, she had a long history with him and with DFAT in general never answering her emails.
The Tribunal asked the Applicant why, when the requirements were being lessened, by the DFAT administered rehabilitation program in comparison to those that were in place under the 3DMS program, she still felt they were unreasonable.[50] The Applicant said:[51]
…. well, it’s unreasonable because it’s not going to – to achieve the end goal. And no rehabilitation provider can help me with disability employment services. I mean we need to face the facts, I'm almost 64 years of age, I haven't worked for a long time, I don't have any references, I have an injury, I don't come with any of the government incentives for - for employers. So to me, that's the assistance that I need. We know that I can do a resume and that I can perform at interviews or whatever. I don't need that assistance. But it's futile just saying to me, "Keep applying, keep applying" when I'm not getting anywhere. I need targeted assistance. And my view is if they can't provide that, we've had six rehabilitation programs, if they can't provide that then don't do anything. That's why I refer to surveillance.
[50] Transcript of 30 March 2022, page 21.
[51] Transcript of 30 March 2022, pages 21-22.

The Applicant told the Tribunal she agreed that the doctors said she can work as long as that work takes into consideration her restrictions.[52]
[52] Transcript of 30 March 2022, page 22.
In relation to the rehabilitation program put into place on 19 June 2020,[53] the Applicant contended:[54]
I believe the decision should be set aside because:
•3DMS should not continue as the rehabilitation provider in light of the comments made by their employment consultant and which they have refused to retract; it is unreasonable that I should be expected to continue working with them. (3DMS has since been removed as the rehabilitation provider).
•It is unreasonable to continue placing me in work trials when I have had ﬁve works trials to date and none have lead to meaningful and sustainable paid employment. The conditions DFAT has placed on work trials, especially that I must agree to work in regulated employment, are also unreasonable.
•The rehabilitation program in its present form, which has been the same for many years, will never deliver the end goal. The targeted assistance I require has not been factored into it. (The rehabilitation program has since been closed).
•The relative merits of any alternative and appropriate rehabilitation program have not been explored. (subsection 37(3)(g)).
[53] AAT File Number 2020/4586.
[54] Exhibit 4, Joint Hearing Book, A1, page 13, Applicant’s statement (2020/4586 & 2020/6109).
In relation to the decision to suspend her incapacity payments,[55] the Applicant contended:[56]
I believe the decision should be set aside because:
•I did not refuse the employment consultant's job search assistance; the option was given to me whether I took up her assistance or not.
•I did not state I would not undertake any further work trials rather I said I did not want to undertake any further work trials.
•DFAT removed the option for me to recommence the rehabilitation program when 3DMS withdrew the services of their employment consultant.
•DFAT factored (or relied entirely) on prior allegations of abusive behaviour which had never been proven when issuing their decision to suspend my payments.
•My incapacity payments were suspended under 11(1)(b) of the Guidelines for Rehabilitation Authorities 2019 ie refusal or failure, without reasonable excuse, to undertake a rehabilitation program under section 37 of the Act. 11(3)(a)(ii) of the Guidelines goes on to say the employee becomes compliant if they commence the speciﬁed activity or next steps in the program. Attend a s36 assessment was not a speciﬁed activity or next step in the program.
[55] AAT File Number 2020/6109.
[56] Exhibit 4, Joint Hearing Book, A1, page 15, Applicant’s statement (2020/4586 & 2020/6109).
In relation to the Rehabilitation Program put in place on 30 August 2021,[57] the Applicant contended:[58]
As indicated in my Reasons for requesting reconsideration of the determination, I consider the rehabilitation program to serve no beneﬁt to me whatsoever other than for DFAT to monitor my job-seeking activities. (T48). That I can independently job seek does not in any way translate to actually gaining employment. The rehabilitation program, once again, has failed to address my barriers to employment which are the reasons why I am not employed. A well-written resume, and the ability to identify and apply for what may be suitable positions, will not change that.
…..
My strong view is therefore that if DFAT, or a rehabilitation provider, is unable to oﬀer me the targeted assistance that I need then anything less than that in a rehabilitation program is pointless. What DFAT has done in setting up the program is to grossly misuse the intention of what constitutes a rehabilitation program both under the SRC Act (the Act) and Comcare's best practice guidance.
…..
I believe the decision should be set aside because:
•The rehabilitation program will never deliver the end goal. It is nothing more than surveillance.
•The relative merits of any alternative and appropriate rehabilitation program have not been explored. (subsection 37(3)(g)).
[57] AAT File Number 2021/7995.
[58] Exhibit 4, Joint Hearing Book, A3, pages 17-18, Applicant’s statement (2021/7995).
In the Applicant’s supplementary statement dated 4 June 2021, she requested that at Hearing it be considered whether or not she is an employee for the purposes of sections 36 and 37 of the SRC Act.[59] The Applicant submitted:[60]
I have, in the past, always accepted that I am an "employee" for the purposes of ss 36 and 37 of the Act as that is what Comcare and DFAT (the employing agency) deemed me to be under s 5(9) of the Act. As such I have both requested rehabilitation and participated in rehabilitation instigated by the employing agency. I have never questioned that but I have now become aware of the two decisions referenced below which related to rehabilitation programs for former employees who took a voluntary redundancy. In the ﬁrst decision, the tribunal determined that the applicant was not an "employee" in that scenario which was in agreeance with the case put forward by the respondent, and in the second decision the tribunal expressed that it had reservations that the applicant was an "employee" but did not express a concluded view as it had no bearing on the ultimate decision.
I do not believe that my past request for rehabilitation, and my past agreement with rehabilitation programs instigated by the employing agency, negates examination of whether I am an "employee" for the purposes of my current applications for review.
References
Cook and Telstra Corporation Limited (2003) AATA 786 (12 August 2003) (A189).
Cook and Comcare (Compensation) (2017) AATA 227 (23 February 2017) (A190)
[59] Exhibit 4, Joint Hearing Book, A2, page 16, Applicant’s supplementary statement (2020/4586 & 2020/6109).
[60] Exhibit 4, Joint Hearing Book, A2, page 16, Applicant’s supplementary statement (2020/4586 & 2020/6109).
At Hearing, the Applicant told the Tribunal that she wanted to have this issue considered with respect to the two cases she had referenced. The Applicant contended that the cases considered a person who accepted a redundancy and then wanted rehabilitation but was determined they were not an employee. In her case, the Applicant submitted, she does not want rehabilitation and they are saying she is an employee. She said that to her you are or you are not an employee.[61]
[61] Transcript of 30 March 2022, page 25.
Respondent’s Contentions
The Respondent contended that it was well demonstrated in the T Documents that the Applicant was resistant to genuine, well-meaning attempts to assist her and that resistance manifested in confrontation with host employers, rehab providers and the employer.[62]
[62] Transcript of 30 March 2022, page 32.
The Respondent contended that the rehabilitation programs to which the three reviewable decisions before the Tribunal relate were important and they were not unreasonable in that they required the bare minimum from the Applicant.[63]
[63] Transcript of 30 March 2022, page 32.
The Respondent sought to rely on the Statements of Facts, Issues and Contentions as filed. In relation to the rehabilitation programs put in place on 19 June 2020 and 30 August 2021, the Respondent contended that section 37(1) of the SRC Act allows the employing agency, as the rehabilitation authority:
(a)to determine that the Applicant undertake a rehabilitation program; and
(b)that it has the discretion to make arrangements with an approved program provider for the provision of a rehabilitation program for the employee.[64]
[64] Exhibit 4, Joint Hearing Book, R1, page 729, paragraphs 4.1-4.2, Respondent’s Statement of Issues, Facts and Contentions (2020/4586 & 2020/6109) and R2, page 742, paragraphs 4.1-4.2, Respondent’s Statement of Issues, Facts and Contentions (2021/7995).
The Respondent contended that when determining a rehabilitation program, the decision maker is required to have regard to each of the criteria (a) to (h) set out in section 37(3) of the SRC Act, including any other relevant matters. The Respondent provided that:[65]
4.5 When considering each of the criteria, the available evidence must be taken into account and given appropriate weight: McGuiness v Comcare [2007] FMCA 1486. It is necessary to “give weight to them as a fundamental element”: R v Toohey; Ex Parte Meneling Station Pty Ltd (1982) 158 CLR 327. If the regard had to the particular matter is not adequate or sufficient, if it is merely nominal or token regard, then it is not consistent or compliant with the statutory obligation imposed upon a decision maker by s 37(3) of the Act: Department of Defence v Fox (1997) 24 AAR 17.
4.6However, in McGuinness v Comcare Australia [2007] FMCA 1486 Federal Magistrate McInnis stated:
[86] The mere reference by the Tribunal to the employee’s attitude to various proposals and/or evidence given before the Tribunal does not retrospectively correct the fundamental flaw in the process leading up to the creation of the program, namely that it had not been finalised after compliance by the rehabilitation authority with the requirement of s 37(3)(f) of the SRC Act by having regard to the employee’s attitude to the program. If the employee’s attitude to the program was negative, it does not mean that the program therefore fails, but simply that the attitude is taken into account and appropriate weight given to the attitude. It is conceivable that an employee, supported by a treating doctor may be opposed to a program but having determined the attitude and given appropriate weight to that attitude then the rehabilitation authority, in my view, has discharged the mandatory requirements of s 37(3)(f) of the SRC Act. That provision does not mean that the employee’s attitude should be the determining factor as to whether a program is approved and/or whether the employee is required to undertake the program.
[65] Exhibit 4, Joint Hearing Book, R1, pages 730-731, paragraphs 4.5-4.6, Respondent’s Statement of Issues, Facts and Contentions (2020/4586 & 2020/6109) and R2, page 743, paragraphs 4.5-4.6, Respondent’s Statement of Issues, Facts and Contentions (2021/7995).
The Respondent contended that DFAT, as the rehabilitation authority, took into consideration the factors in section 37(3) of the SRC Act.[66] The Respondent submitted that in relation to the rehabilitation program put in place on 19 June 2020:[67]
[66]    Exhibit 4, Joint Hearing Book, R1, page 729, paragraphs 4.3-4.4, Respondent’s Statement of Issues, Facts and Contentions (2020/4586 & 2020/6109).
[67]    Exhibit 4, Joint Hearing Book, R1, pages 729-731, paragraphs 4.4-4.10, Respondent’s Statement of Issues, Facts and Contentions (2020/4586 & 2020/6109); in relation to AAT File Number 2020/4586.
…… The employing agency considered the following:
Factors for consideration
(a)Any written assessment given under s 36(8): An Early Intervention Assessment Report dated 13 March 2020 prepared by Carmel McKenna from 3DMS recommended a Rehabilitation Program to assist the Applicant with the transition to suitable paid employment in the future was considered. An interim non return to work Rehabilitation Program was developed due to covid19 and this program will commence job seeking activities.
(b)Any reduction in future liability to pay compensation if the program is undertaken: the Rehabilitation Program is designed to assist the Applicant obtain paid employment.
(c)The cost of the program: the cost of the program is in line with Comcare’s standards.
(d)Any improvement in the Applicant’s employability: the Rehabilitation Program is designed to increase the Applicant’s job seeking skills and assist her obtain paid employment.
(e)Likely psychological effect: The Applicant will be job seeking in a supportive work environment, which will be enhanced by the support of the workplace rehabilitation provider. This should have a positive psychological effect on the applicant.
(f)The Applicant’s attitude to the program: The Applicant does not agree with the program and has refused to sign it. The Applicant has previously stated that she will not participate in another work trial. The delegate considered that the option of a work trial should remain in the program as it would give the Applicant further experience in a work environment and a current referee for job applications. The Applicant did not agree with the requirement to forward any cover letters, applications or statements in support of selection criteria to 3DMS for perusal and feedback prior to submission to the potential employer. The delegate considered this will improve the quality of job applications as it will allow the 3DMS employment consultant to suggest constructive improvements and additions to the applications, which in turn will give the Applicant the best chance of obtaining the position applied for.
(g)The relative merits of any alternative and appropriate Rehabilitation Program: The delegate believed that this Rehabilitation Program meets the requirements of a successful Rehabilitation Program, to assist the Applicant’s successful return to work. The Rehabilitation Program is considered the best option to facilitate a safe and durable return to work for the Applicant.
………
4.7The Respondent contends that the fact the Applicant does not agree with the Rehabilitation Program does not mean that it should not proceed. It merely must be shown that the Applicant’s attitude to the plan was duly considered.
4.8The Respondent contends that the protracted history of the Applicant’s Rehabilitation Programs since 2009 as documented in the T documents and the more recent correspondence between the parties regarding the Applicant’s Rehabilitation Program on 19 June 2020 (see T101, T103-T105, T108-T109) demonstrates that the delegate gave adequate consideration to the Applicant’s attitude towards the Program.
4.9The Respondent further contends the delegate’s consideration of s37(3)(b) is supported by the functional assessments of Mr Ansell (T91), Ms McKenna (T92) and Mr Wong (T93) and the Medical Certificates of the Applicant’s treating General Practitioner, Dr Jukes (T107).
4.10The Respondent contends that the Rehabilitation Program determined on
19 June 2020 was a reasonable program having regard to the factors set out in s37(3) of the SRC Act.
In relation to reviewable decision to suspend the Applicant’s incapacity payments, the Respondent provided:[68]
4.11The Respondent contends that on 7 July 2020 the Applicant declined Ms Sabani’s assistance with her resume, job applications, indicated she would not undertake any more work trials and refused to participate in mock interviews. Ms Sabani was left with the impression the Applicant did not want her assistance.
4.12The Respondent contends the Applicant was given the opportunity to re-commence her Rehabilitation Program by letter dated 14 July 2020. However, the Applicant took no steps to re-commence the Rehabilitation Program and gave no indication that she would do so in her response on
28 July 2020 to that letter.
4.13The Respondent therefore contends the Applicant refused or failed, without reasonable excuse, to participate in the Rehabilitation Program determined on 19 June 2020. Specifically, the Applicant failed to:
(a)Receive job search assistance including review of resume development and job search skills including drafting cover letters, addressing selection criteria and interview preparation and skill development; and
(b)Stated she would not undertake any further work trials.
[68] Exhibit 4, Joint Hearing Book, R1, pages 731-732, paragraphs 4.11-4.13, Respondent’s Statement of Issues, Facts and Contentions (2020/4586 & 2020/6109); in relation to AAT File Number 2020/6109.
The Respondent submitted that in relation to the rehabilitation program put in place on
[69] Exhibit 4, Joint Hearing Book, R2, pages 742-744, paragraphs 4.4-4.10, Respondent’s Statement of Issues, Facts and Contentions (2021/7995); in relation to AAT File Number 2021/7995.
30 August 2021:[69]
…… The employing agency considered the following:
Factors for consideration
(a)Any written assessment given under s 36(8): The 3DMS Closure Report prepared by Ms McKenna stated that the Applicant has demonstrated consistent ability to apply for work, and with no further intervention being requested or provided during the rehabilitation program. Given these factors and as the Applicant has demonstrated an ability to independently seek suitable paid employment, no further rehabilitation assistance is required. For this reason, rehabilitation assistance is being finalised.
(b)Any reduction in future liability to pay compensation if the program is undertaken: The rehabilitation program is designed to assist the Applicant obtain paid employment. This will lead to a reduction in liability for ongoing incapacity payments.
(c)The cost of the program: This is an inhouse program without cost.
(d)Any improvement in the Applicant’s employability: The rehabilitation program is designed to increase the Applicant’s job seeking skills and assist her obtain paid employment.
(e)Likely psychological effect: The Applicant will be job seeking with the support of the Rehabilitation Authority. This should have a positive psychological effect on the Applicant.
(f)The Applicant’s attitude to the program: The Applicant does not agree with the program and has refused to sign it. She considers the program surveillance regarding job seeking. The Rehabilitation Authority has previously engaged several rehabilitation providers and the Applicant refused their assistance and stated that she was capable of job seeking. She refused any work trials and did not see the value of engaging in such activities. The delegate considered that an inhouse program allowing the Applicant to self-seek paid employment to be appropriate.
(g) The relative merits of any alternative and appropriate Rehabilitation Program: The delegate believed that this rehabilitation program meets the requirements of a successful rehabilitation program, to assist the Applicant’s successful return to work. The rehabilitation program is considered the best option to facilitate a safe and durable return to work for the Applicant
4.7The Respondent contends that the fact the Applicant does not agree with the rehabilitation program does not mean that it should not proceed. It merely must be shown that the Applicant’s attitude to the plan was duly considered. The Applicant was provided with a draft rehabilitation program for consideration and comment (T44). Further, the Applicant’s views toward elements of the rehabilitation program, such as job search requirements, have been made clear to the Rehabilitation Authority over a number of years when developing previous plans. The Respondent contends that this demonstrates that the delegate gave adequate consideration to the Applicant’s attitude towards the rehabilitation program, as required by s 37(3)(f).
4.8Further, the Respondent contends that the delegate’s assertions with respect to the other s 37(3) factors were appropriate. In particular, the Respondent contends:
(a)The Applicant has been medically certified fit for suitable duties.
(b)She has a lengthy history of refusing to engage in work trials and failing to cooperate with external rehabilitation providers.
(c)In the 3DMS Closure Report dated 22 June 2021, it was stated that the Applicant has demonstrated an ability to independently seek suitable paid employment and no further rehabilitation assistance is required (T39). Accordingly, it is sufficient for the rehabilitation program to simply require the Applicant to job seek and lodge proof of her job seeking activities.
(d)To the extent that the Applicant may require assistance with job seeking, there is provision in the rehabilitation program for DFAT to ‘maintain regular contact with the applicant to review progress with medical conditions and support her job seeking preparation and activities’.
(e)There is no requirement in the SRC Act or the Guidelines for Rehabilitation Authorities Instrument 2019 for the Rehabilitation Authority to delegate its functions to an external rehabilitation provider.
(f)Further, given the recommendations of 3DMS and the Applicant’s lengthy and unsuccessful engagement with external rehabilitation providers, it is reasonable for the rehabilitation program to be managed in-house.
4.9The Respondent contends that the rehabilitation program determined on
30 August 2021 was a reasonable program having regard to the factors set out in s 37(3) of the SRC Act.

The Tribunal agrees with the findings of the reconsideration officer.
Based on the evidence before it, the Tribunal finds that on 7 July 2020, the Applicant refused or failed to undertake the rehabilitation program by failing to receive job search assistance, including review of resume development and job search skills including drafting cover letters, addressing selection criteria and interview preparation and skill development and indicated that she was not interested in undertaking further work trials.
While the Applicant may not have said she would not undertake further work trials and consistently said she had to participate with the program – there is a difference between participating by simply attending an appointment and genuine participation where, when at that appointment, there is cooperation to work towards the common goal. It is the genuine participation that the Applicant made quite clear she was not willing to engage in.
Participation cannot be forced upon the Applicant by the rehabilitation provider, as Ms Sabani attempted to make clear, however as has been the case here, there are consequences for not participating.
Further, the Tribunal considers that the Applicant’s excuse for refusing or failing to undertake the program was that she had done it all before and she wanted a rehabilitation provider who she considered could “actually help her”.
It is, however, established that an employee’s dissatisfaction with a rehabilitation program is not of itself a reasonable excuse for non-compliance.[81]
[81] See Australian Postal Corporation v Pascoe [2003] FCA 390.
The Tribunal considers, when looking at the material before it as a whole, that the Applicant refused or failed to undertake the rehabilitation program without a reasonable excuse. Consequently, the Tribunal finds that the determination made on 11 August 2020 and affirmed by the Respondent on 2 October 2020 to suspend the Applicant’s incapacity payments pursuant to section 37(7) of the SRC Act was appropriate.
Tribunal File 2021/7995 – 30 August 2021 Rehabilitation Program
In relation to the self-administered rehabilitation program put in place on 30 August 2021, the Tribunal has had regard to the entirety of the material before it and in particular notes the:
·consideration provided by DFAT in relation to the section 37(3) requirements (set out in paragraph 58 above);
·Applicant’s response to that assessment (as set out in paragraph 28);
·overview of the steps taken to put the Rehabilitation Program into place as provided in paragraphs 27-33 above.
·Applicant’s contentions (set out in paragraph 49 above); and
·Respondent’s contentions in relation to DFAT’s consideration (as set out in paragraph 58 above).
The Tribunal accepts the contentions made by the Respondent as outlined in paragraph 58 above that the documentary evidence establishes that DFAT, as the rehabilitation authority, gave adequate consideration to the requirements of section 37(3) of the SRC Act when putting in place the 30 August 2021 rehabilitation program. The Tribunal considers that the decrease in obligations placed on the Applicant and flexibility in this rehabilitation program reflect the consideration given to the section 37(3) requirements by DFAT.
The Tribunal does not accept the Applicant’s contentions that the only purpose of the rehabilitation program was to have her do something to justify her incapacity payments or to act as a surveillance tool. Further, for the reasons outlined above, the Tribunal does not accept that previous rehabilitation programs were not successful in assisting the Applicant to gain sustainable paid work or that the program put in place on 30 August 2021 would likewise be unsuccessful because those programs were unreasonable.
It is a telling sign when, as is the case here, the Applicant’s general practitioner and other specialists or allied health professionals all certified the Applicant as being fit to undertake a rehabilitation program and encouraged that she be provided with assistance to return to the workforce. Of particular relevance to this program is the report of Dr Jukes, the Applicant’s general practitioner, dated 9 December 2020 where he reported that a rehabilitation program was desirable both to allow the Applicant to return to work as well as for her general health. Noting that Dr Jukes is the Applicant’s general practitioner, it is likely that his recommendation was made after also considering the Applicant’s reporting to him about past rehabilitation programs.
The Tribunal accepts that the purpose of the rehabilitation program was to increase the Applicant’s job seeking skills and assist her to obtain paid employment. Further, the rehabilitation program took into account the Applicant’s assertions in relation to her ability to seek jobs and make applications and reluctancy to undertake further work trials. DFAT was required to monitor and evaluate the rehabilitation program by maintaining regular contact with the Applicant to review progress with medical conditions and support her ongoing job search and preparation activity.
It was not disputed by the Applicant that her obligations under the rehabilitation program were not onerous. The Applicant however contended that it was unreasonable as it would not achieve the end goal. Based on the requirements put in place by the rehabilitation program and the support offered, the Tribunal finds that the rehabilitation program was reasonable.
The Tribunal considers, when looking at the material before it as a whole, that the rehabilitation program put in place by determination on 30 August 2021 and affirmed by the Respondent on 22 October 2021 is a program that was properly and appropriately made for the Applicant, despite her resistance to it. As such, the Tribunal finds that the Applicant is obliged to undertake it.
CONCLUSION
Based on the evidence before it and for the reasons set out above, the Tribunal finds that:
(a)the rehabilitation program put in place by DFAT pursuant to the determination dated 19 June 2020, and affirmed by the Respondent on
24 July 2020, was properly and appropriately made for the Applicant and she was obliged to undertake it; and
(b)the Applicant refused or failed to undertake, without reasonable excuse the rehabilitation program determined on 19 June 2020 and as such the suspension of her incapacity payments by the determination made on
11 August 2020 by DFAT and affirmed by the Respondent on 2 October 2020 was appropriate; and
(c)the rehabilitation program put in place by DFAT pursuant to the determination dated 30 August 2021, and affirmed by the Respondent on
22 October 2021, was properly and appropriately made for the Applicant and she was obliged to undertake it.
Accordingly, the decisions under review are affirmed.

I certify that the preceding 110 (one-hundred and ten) paragraphs are a true copy of the reasons for the decision herein of Member D Mitchell

...................[SGD]........................
Associate
Dated: 4 July 2022

Date of Hearing: 30 March 2022

Applicant:

Counsel for the Respondent:

Solicitor for the Respondent:

In Person

Mr Charles Clarke

Ms Gillian Gehrke

Sparke Helmore Lawyers

Exhibit 1, T Documents, AAT file 2020/4586; Exhibit 2, T Documents, AAT file 2020/6109 and Exhibit 3,

T Documents, AAT file 2021/7995.