Jong and Comcare
[2007] AATA 1429
•31 May 2007
Administrative Appeals Tribunal
WRITTEN REASONS FOR ORAL DECISION AND
CORRECTION OF ERROR IN DECISION [2007] AATA 1429
ADMINISTRATIVE APPEALS TRIBUNAL )
) N2005/1560
GENERAL ADMINISTRATIVE DIVISION ) N2006/875 Re JORGE JONG Applicant
And
COMCARE
Respondent
DECISION AND CORRECTION OF ERROR IN DECISION
Tribunal Senior Member, Mrs Josephine Kelly and Member, Dr Max Thorpe Date of oral decision 31 May 2007
Date of written reasons 15 June 2007
PlaceSydney
Decision 1. The Tribunal released a decision in this matter dated 31 June 2007. The tribunal allowed the parties 7 days to submit alternative wording to ensure the decisions dealt with the matter comprehensively.
2. The Tribunal was satisfied that there is an obvious error in the text of the decision and pursuant to s 43AA of the Administrative Appeals Tribunal Act1975 directed the Registrar to alter the text of the decision.
3. There was a typographical error in paragraph 2. Paragraphs 1, 3 & 4 remain unchanged.
4. The altered decision follows:
For the reasons given orally at the conclusion of this hearing, the Tribunal proposed making decisions having the following effect, but allowed the parties 7 days to submit alternative wording or seek further orders to ensure the decisions dealt with the matter comprehensively. No alternative wording or further orders were sought.
1. The reviewable decision by Comcare dated 28 October 2005, which is the subject of proceeding N2005/1560, is set aside; and
2. The reviewable decision by Comcare dated 28 June 2006, which is the subject of proceedings N2006/875, is varied to reflect the Tribunal’s finding that Mr Jong was only able to work 6 hours per day on suitable duties.
3. The question of costs was reserved and the parties asked to advise the Tribunal within 7 days whether they wished to argue the matter. The Respondent advised it did not wish to argue the matter and sought the usual order. Accordingly, the Tribunal orders the Respondent to pay the Applicant’s cost as agreed or assessed.
.....................[sgd].........................
Presiding Member
Senior Member, Mrs Josephine Kelly
WRITTEN REASONS
1. At the conclusion of the hearing of this matter in Sydney, the terms of the decision made and the reasons for that decision were stated orally. The Respondent requested the Tribunal to furnish a statement in writing of the reasons for its decision pursuant to sub-section 43(2A) of the Administrative Appeals Tribunal Act 1975.
2. The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service, and edited only to the extent necessary to ensure clarity of expression, without in any way changing the reasons. The edited transcript comprises the reasons for the Tribunal’s decision and is annexed, and is furnished to the Applicant and to the Respondent.
CATCHWORDS
WORKER’S COMPENSATION – whether applicant had reasonable excuse for failure to undertake rehabilitation program – whether rehabilitation program was appropriate – held applicant had reasonable excuse – reviewable decision set-aside - determined applicant was able to work for only 6 hours per day on suitable duties.
LEGISLATION
37(7) Safety, Rehabilitation and Compensation Act 1988
WRITTEN REASONS FOR ORAL DECISION
Senior Member, Mrs Josephine Kelly and Dr Max Thorpe
1. The following is our decision in the two matters relating to Mr Jorge Jong and Comcare. They are proceedings N2005/1560 and proceedings N2006/875. At the outset, to save any unnecessary anxiety, or perhaps impose anxiety on somebody else, we would indicate that Mr Jong has been successful in these proceedings.
2. Mr Jorge Jong has worked for the Department of Defence since 1996. There are two proceedings before us, N2005/1560 concerns a reviewable decision dated 28 October 2005 affirming a decision of 26 August 2005 to suspend Mr Jong’s right to compensation pursuant to section 37(7) of the Safety, Rehabilitation and Compensation Act 1988 (‘the Act’) because he failed to work his full 7.5 hours per day from 26 July 2005 as required by a rehabilitation program dated 20 July.
3. The second proceedings, N2006/875 concern a reviewable decision made on 28 June 2006 affirming a decision of 20 July 2005 requiring Mr Jong to undertake the rehabilitation program to work 7.5 hours per day, five days per week. The issues are, therefore:
a.Did Mr Jong have a reasonable excuse within the meaning of section 37(7) of the Act for failing to undertake a rehabilitation program?
b. Was the rehabilitation program determined on 20 July 2005 appropriate?
Background
4. The following is not in dispute. Mr Jong is left-handed. He sprained his left wrist on 28 August 2003 and although various statements have been made in various witnesses’ statements that there was an alleged accident, liability had been accepted for that injury. He had massage and acupuncture. He returned to work on 19 September 2003 on reduced work hours: four hours per day, five days per week with a lifting restriction of one kilogram and avoiding manual pushing and pulling.
5. An initial rehabilitation assessment report of 31 October 2003 was prepared by Mr Lazarus, from whom we heard today. He is an occupational therapist. At that time Mr Lazarus reported Mr Jong was currently working six hours per day, five days per week. Dr Lam, Mr Jong’s general practitioner, referred him at this time to Dr Ian Gotis-Graham, rheumatologist, as Dr Lam was concerned that the left wrist was continuing to trouble Mr Jong.
6. In February 2004, Mr Jong had a steroid injection by Dr Gotis-Graham. At that stage Mr Jong had a weight lifting restriction of three kilograms. In April 2004 Mr Jong came under the care of Dr Nabarro, hand surgeon, who operated on Mr Jong’s left wrist on 18 June 2004. Mr Jong returned to work on about 6 September 2004 working three hours per day, four days per week, but not working Wednesday.
7. On 18 November and 23 December 2004 Mr Jong complained of discomfort in his left wrist to Dr Nabarro. On December 23, Dr Nabarro noted that Mr Jong had developed a ganglion in his right wrist. An ultrasound of the right wrist in February 2005 confirmed a ganglion, tenosynovitis and underlying synovitis in two areas of the wrist. Mr Jong was complaining of some discomfort and a click in the left wrist when he saw Dr Nabarro on 3 March 2005. The doctor reported on the ultrasound of the right wrist.
8. Having seen Dr Nabarro on 3 March, Mr Jong then saw Dr Dowda, consultant occupational physician, who was of the opinion that Mr Jong could work 37.5 hours, that is his full-time, doing specific duties. Dr Dowda acknowledged that Mr Jong would experience sporadic days of incapacity if he returned to work on those specified restrictions. He also considered that it might be necessary to reduce his duties when his left wrist’s symptoms were exacerbated. Curiously, having said that Mr Jong was fit for full-time work, he noted that Mr Jong’s prognosis was guarded. I just read from that. This is Dr Dowda:
Mr Jong’s prognosis at this stage remains guarded. I am unclear with respect of his right wrist what the likely outcome is. As far as the left wrist is concerned, the fact that he has persisting problems of irritability of the left wrist with pain of the same nature he was experiencing at the time of his triangular fibro-cartilage complex tear would suggest at this stage, now a couple of years after the injury, the prognosis for it to recover further is not good.
9. In May Mr Jong continued to complain of pain in both wrists to Dr Nabarro. There were clinical findings on examination. Dr Nabarro returned Mr Jong for ultrasound guided steroid injections of both wrists which he had at that time. Dr Crocker, consultant occupation physician, saw Mr Jong on 1 July 2005. Dr Crocker considered Mr Jong fit for his 37.5 hours work doing specified suitable duties. Dr Crocker had had a discussion with Dr Lam. He said that Dr Lam “continues to discuss Mr Jong’s medical status and work capacity in a cautious manner” with the possibility of a half-hour upgrade for shift but Dr Lam was not able to provide a timeframe for return to usual work hours of 37.5 hours per week.
10. Dr Nabarro saw Mr Jong on 11 July 2005. Mr Jong had had the steroid injections in both wrists which had provided some relief for approximately two weeks, but the pain had recurred. There were clinical findings in both wrists. Dr Nabarro had referred Mr Jong to Dr Dilley, also a hand surgeon, for a second opinion. Based on Dr Crocker’s report on 20 July 2005 Comcare determined a rehabilitation program pursuant to section 37 of the Act which was to work a 37.5 hour working week provided suitable duties were provided. The program commenced on 25 July 2005. On 26 July Mr Jong left after working for six hours. He had a medical certificate from Dr Lam to the effect that he was fit for six hours of work. He worked only six hours per day thereafter until 18 November 2005. On 9 August 2005, Dr Dilley saw Mr Jong who he said continued to have persistent discomfort over the ulna aspect of the left wrist. He suggested a further MRI examination and consideration of a further arthroscopy.
11. On 11 August Dr Nabarro referred Mr Jong for repeat MRI; there were clinical signs in the left wrist. On 19 August 2005 a decision was made to suspend Mr Jong’s right to compensation pursuant to section 37(7) of the Act. The reviewable decision was made on 28 October 2005 affirming the decision of 20 July 2005. As previously mentioned, Mr Jong returned to full duties on 18 November 2005 and we note that Dr Nabarro operated for a second time on Mr Jong’s left wrist in June 2006.
Consideration
12. We had heard from various witnesses. In particular, for the respondent, we heard from Ms Snook who was Mr Jong’s supervisor. We understand that the defence premises at Moorebank comprise, relevantly, 38 very large warehouses which can contain things as small as nuts and bolts to things as large as aircraft wings.
13. The duties that Mr Jong undertook we don’t think were really in dispute. They were of the nature of stocktaking, variously described as “from register to floor”, “floor to register”, “spot checks” and “observing”. There was a dispute as to the extent of the observation work that Mr Jong was doing, particularly in the beginning of 2005 to about July and the extent to which he was lifting heavy items. His evidence was that he was lifting I think in the order of 20 per cent of parcels or boxes that were over two kilos, which was over his weight restriction at the relevant time. However, we note that Ms Snook had 70 people under her supervision and although we don’t doubt that she was a diligent supervisor, Mr Jong was effectively out and about in these huge warehouses undertaking his job essentially without anybody watching what he was doing.
14. Overall, we accept his evidence. There may have been some exaggeration given his frustration with how he felt he had been treated, but essentially we accept, and in our view it is more than supported by the medical evidence which was apparent at the time from Dr Nabarro and Dr Dilley. Dr Dowda’s opinion seems rather curious given his comments about the prognosis; that is, that Mr Jong was capable of 37.5 hours work and yet the prognosis was rather guarded. Dr Crocker’s report in contrast is much stronger in terms of Mr Jong’s capacity to do work just at a time after Mr Jong had had steroid injections which had only given relief for two weeks and given his complaints about the same to Dr Nabarro and the referral to Dr Dilley for a second opinion. Clearly this man had a problem.
15. Dr Lam we heard from. We were most impressed by Dr Lam’s evidence. He was clearly concerned with his patient. He had been looking after him and his right and left wrist, beginning with the left wrist in 2003. He was concerned about increasing the hours of work. Mr Dube was inferentially critical of Dr Lam as perhaps just acting on what Mr Jong had told him. However, given the reports and continued complaints to Dr Nabarro and Dr Lam we consider that Dr Lam was looking after his patient in a most professional manner.
16. We have heard from Mr Gretch. Mr Gretch gave his evidence quite honestly. I think the point to be made there is that essentially he was only working with Mr Jong after the stocktake had been completed, that is from about November 2005. Essentially once the concentrated stock work was finished, Mr Jong found that he was able to cope with full-time hours. We don’t think that that is a coincidental matter, but, rather, sounds rather causative.
17. Mr McHugh and Mr Lazarus – there was an effort to try to get Mr Jong back to full-time work. We just note the background that there were redundancies going on at the defence establishment. We don’t know what significance that has, but we note that that was apparent. In any event, Mr McHugh and Mr Lazarus were trying to get Mr Jong back to work. We appreciate that Mr McHugh was relying on the reports of Dr Crocker and Dr Dowda. However, in our opinion, those doctors did not have a complete understanding or appreciation of Mr Jong’s condition, whereas Dr Lam did, particularly given that he had the expert opinion of Dr Nabarro in the reports that he was receiving from that doctor.
18. So in essence we prefer the evidence of Dr Lam to that of Dr Dowda and Dr Crocker and in our view Mr Jong’s refusal to undertake the rehabilitation program was with a reasonable excuse and therefore in relation to the decision in proceedings M2005/1560 to suspend Mr Jong’s workers’ compensation rights we set that decision aside. We understand that that has the effect that we would have to do nothing further in relation to that.
19. In relation to proceedings N2006/875, that is the review of the actual rehabilitation program, it seems to us that it must follow that we consider that that was not an appropriate rehabilitation program for Mr Jong at that time. The evidence of Dr Lam and Dr Nabarro at the time and Mr Jong’s own complaints about his difficulties, which were consistent from 2003 until the end of 2005, in our view show that that was not a reasonable rehabilitation program. We would set that decision aside and determine that Mr Jong was able to work for only 6 hours per day, not the 7.5 hours per day, on suitable duties.
20. Now, in the event that the parties wish to have us make any more specific decision in relation to either of those matters, we will give them leave to put decisions to us within seven days. Otherwise we will make the decisions in accordance as foreshadowed.
21. I will just make perhaps one point that needs to be made. When Mr Jong was questioned by Mr Nicholson, counsel for Mr Jong, at the beginning there was an emphasis on what happened in April 2005. As I understand the decisions that were made, relevantly the period when he didn’t work his 7.5 hours was in relation to the July rehabilitation program. It is quite clear, there is an email from Ms Snook I think dated 26 July indicating that he only worked for 6 hours and not the 7.5 and that was the date of initial suspension of the workers’ compensation rights; so I just wanted to make that clear.
22. There is also the question of costs. I should say that given the result it would seem appropriate to order that the respondent pay the applicant’s costs, but we will give you seven days also to approach us if you wish to argue that.
I certify that the 22 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member,
Mrs Josephine KellySigned: Ms Preethi Nimmagadda
AssociateDate of Hearing 30 & 31 May 2007
Date of Oral Decision 31 May 2007
Date of Written Reasons 15 June 2007
Solicitor for Applicant Eugene Lepore & Associates
Counsel for Applicant Mr B Nicholson
Solicitor for Respondent Sparke Helmore LawyersCounsel for Respondent Mr B Dube
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