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…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading JFFZ and Comcare (Compensation)

Details

AGLC: JFFZ and Comcare (Compensation) [2022] AATA 2283
Case: [2022] AATA 2283
Decision Date: 4 July 2022

CaseChat Overview and Summary

This matter concerned an application by JFFZ (the Applicant) against Comcare (the Respondent) regarding the suspension of the Applicant's compensation payments. The dispute arose from the Applicant's refusal or failure to undertake rehabilitation programs determined for her under section 37 of the *Safety, Rehabilitation and Compensation Act 1988* (Cth) (SRC Act). The Applicant had a long history of employment and subsequent redundancy, followed by a claim for compensation for De Quierain’s Tenosynovitis, which was accepted. Despite undertaking several rehabilitation programs, they had not been successful, and the Applicant expressed dissatisfaction with various rehabilitation providers and work trials.

The Tribunal was required to determine whether the rehabilitation programs determined on 19 June 2020 and 30 August 2021 were reasonably made, having regard to the factors set out in section 37(3) of the SRC Act. It also needed to ascertain whether the Applicant's incapacity payments should have been suspended on 11 August 2020, specifically whether she refused or failed to undertake the 19 June 2020 program without reasonable excuse.

The Tribunal found that the rehabilitation program determined on 19 June 2020 was properly and appropriately made for the Applicant, and she was obliged to undertake it. Consequently, her refusal or failure to do so without reasonable excuse justified the suspension of her incapacity payments. Furthermore, the Tribunal concluded that the rehabilitation program determined on 30 August 2021 was also properly and appropriately made, and the Applicant was obliged to undertake it. Accordingly, all decisions under review were affirmed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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.