Karhani and Linfox Australia Pty Ltd
[2011] AATA 506
•22 July 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 506
ADMINISTRATIVE APPEALS TRIBUNAL )
) Nos. 2010/1117 &
GENERAL ADMINISTRATIVE DIVISION ) 2011/1768 Re Chadi Karhani Applicant
And
Linfox Australia Pty Ltd
Respondent
DECISION
Tribunal Deputy President J W Constance Date22 July 2011
PlaceMelbourne
Decision Application 2010/1117
The decision under review made 17 February 2010 is set aside and in substitution it is decided that Mr Karhani was totally incapacitated for work from 14 December 2009 to 14 March 2010 inclusive and from 27 April 2010 to 23 February 2011 inclusive.
Application 2011/1768
The decision under review made 29 April 2011 is set aside and in substitution it is decided that Mr Karhani was totally incapacitated for work from 1 February 2010 to 14 March 2010 inclusive and from 27 April 2010 to 23 February 2011 inclusive.
…...(sgd J W Constance).................
Deputy President
COMPENSATION – Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 19(2) and 19(4) – whether the return to work plans constituted offers of suitable employment – applicant’s failure to accept the return to work plans was reasonable in all the circumstances – surveillance material - respondent failed to assist the Tribunal s 33 (1AA) Administrative Appeals Tribunal Act 1975 (Cth) - Decisions set aside
Administrative Appeals Tribunal Act 1975 (Cth) ss 33 (1AA), 35(2) and 37(1AF)
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 19(2) and 19(4)
Aunela and Telstra Corporation (2007) 95 ALD 785
Australian Postal Corporation v Bessey (2001) 32 AAR 508
Australian Postal Commission v Hayes (1989) 23 FCR 320
Re Sollazzo and Comcare [2000] AATA 65
REASONS FOR DECISION
22 July 2011
Deputy President J W Constance
INTRODUCTION
1. Since 2003 Mr Karhani has been employed by Linfox Australia Pty Ltd. With the exception of a period of approximately six weeks in March/April 2010, Mr Karhani did not go to work between 11 October 2009 and 24 February 2011. During the whole of this absence Mr Karhani was certified to be unfit for work by his general practitioner.
2. On 17 February 2010 Linfox decided that from 14 December 2009 until 1 February 2010 Mr Karhani had a capacity to earn part of his normal weekly earnings and thereafter had the capacity to earn all of his normal weekly earnings.[1] Mr Karhani is seeking a review of this decision in application 2010/1117.
[1] Exhibit R10.
3. On 29 April 2011 Linfox decided that Mr Karhani was entitled to compensation by way of incapacity payments from 1 February 2010 and ongoing based on the hours he was required to work as set out in a Return to Work Plan dated 4 December 2009.[2] Mr Karhani is seeking a review of this decision in application 2011/1768.
[2] Exhibit R14.
4. For the reasons which follow both the decisions under review will be set aside.
EVIDENCE AND FINDINGS OF FACT
5. Unless otherwise stated the following findings of fact are made on the basis of the evidence of Mr Karhani. I am satisfied of the facts found on the balance of probabilities.
6. I am satisfied that Mr Karhani was an honest witness who gave his evidence to the best of his recollection. He readily agreed that at times he believed he was able to undertake restricted duties offered by his employer, but said that he did not undertake these duties on the advice of his general practitioner. I note that on previous occasions when he was injured he had continued to work on restricted duties. As a young man with a young family there was no apparent reason why he would not have wished to return to work as soon as he was in a position to do so. I will refer to the surveillance film evidence later in these reasons.
7. Mr Karhani is 35 years old. He is married with a young family.
8. In 2003 Mr Karhani commenced work as a truck loader with Linfox Australia Pty Ltd. This work primarily involved the loading of pallets and cages using a loading machine. The work involved some manual handling of the cages.
9. In 2004 Mr Karhani suffered an injury to his neck, shoulders and arms caused by lifting boxes. He was off work for about six weeks recovering from this injury.
10. Mr Karhani was injured again in July 2008 while operating loading equipment. He did not have any time off work but was restricted to light duties for about four weeks.
11. On 4 September 2009 Mr Karhani was operating a loading machine when he felt increasing pain in his lower back. He had suffered pain in his back from time to time leading up to this incident.
12. The machine Mr Karhani was operating was designed such that he was standing in a confined space which prevented his bending his knees. He bent and twisted from the waist to compensate for this. At times he was required to manually push cages loaded with tinned food. Mr Karhani reported the injury to his supervisor and after a short rest completed his shift. For the next two weeks he maintained his normal duties but continued to experience pain in his back and in his legs.
13. About 7 September 2009 Mr Karhani was examined by his employer’s nominated medical practitioner, Dr Ong.[3] Dr Ong prescribed two different medications for Mr Karhani and referred him for physiotherapy over a four week period. Mr Karhani was restricted to light duties for approximately four weeks. On 10 October 2009 Mr Karhani suffered a reaction to the combined medication prescribed by Dr Ong and was taken to hospital by his team leader. The following day he attended his own general practitioner, Dr Parikh, who certified him unfit for any work duties.
[3] Exhibit R12.
14. On 19 November 2009 Mr Karhani returned to his workplace where he was assessed by Dr Ho, a medical practitioner and occupational health consultant. The purpose of this assessment was to determine suitable duties to formulate a return to work plan for Mr Karhani.[4]
[4] Exhibit R4.
15. During the assessment Dr Ho discussed with Mr Karhani the possibility of his returning to work on modified duties. Mr Karhani told Dr Ho that he thought he could do all of the duties discussed but that he wanted to speak to Dr Parikh first because he (Dr Parikh) knew what was happening with his back.
16. On 20 November 2009 Linfox offered Mr Karhani a return to work program to commence on 23 November 2009. This was in the form of a document headed RTW Schedule. The offer included restricted duties and a gradual return to full-time hours over eight weeks.[5]
[5] Exhibit R5.
17. On 25 November 2009 Linfox accepted liability to compensate Mr Karhani in respect of his loss of income and treatment expenses for his lower back injury. He was treated with hydrotherapy and medication for pain relief.
18. On or shortly after 4 December 2009 Mr Karhani received another return to work offer from Linfox.[6] He was requested to respond to the offer by 11 December 2009. This offer was of specified duties (other than those normally performed by Mr Karhani) commencing on 14 December 2009 and a gradual return to full-time hours by 1 February 2010. The document included the following:
[6] Exhibit R6.
Note: This offer is part of your rehabilitation and is not a new employment offer
Date: 4 December 2009
Current Medical Certificate: 20/11/09 – 18/12/09
Restrictions: Unfit for work
Review date of Schedule: 10 December 2009 (review with Dr Parikh)
Goal for this period: For Mr Karhani to commence a graduated return to work on alternative duties and partial hours, as per Dr Ho’s recommendations.
Mr Karhani is requested to respond by: 11 December 2009
Medical Recommendations/other safe working guidelines to be adhered to:
·Mr Karhani to adhere to restrictions as per Certificate of Capacity.
·Mr Karhani to continue participating in the Rehabilitation Program as prescribed by his Treating Medical Practitioners to ensure a maximum work capacity.
19. The evidence as to the events which immediately followed Mr Karhani's receiving the offer is unclear. Clinical records kept by Dr Parikh [7] show that Mr Karhani consulted Dr Parikh on 10, 14 and 18 December 2009. There is no reference to an offer of a return to work program in the notes for these days.
[7] Exhibit A11.
20. Mr Karhani gave evidence that he showed the plan to Dr Parikh who advised him that he needed “a couple of months of physio and swimming.” [8] When cross‑examined, Mr Karhani agreed that he would have been able to return to work in accordance with the schedule, but his doctor said no.[9] He said that he did not specifically discuss with Dr Parikh the duties set out.[10]
[8] Transcript 23.5.11 p-12.
[9] Transcript 23.5.11 p-29.
[10] Transcript 23.5.11 p-30.
21. Dr Parikh gave evidence that in his opinion Mr Karhani was not fit to perform any of the revised duties until about February 2010.[11] Dr Parikh had issued a certificate (undated) that Mr Karhani was totally incapacitated for work from 5 November 2009 to 18 December 2009. On 18 December 2009 he issued a certificate that Mr Karhani was unfit for any duties from 18/12/09 to 15/1/10.[12]
[11] Transcript 24.5.11 p-4.
[12] Exhibit A4.
22. I am satisfied that when Mr Karhani was given the return to work plan about 4 December 2009 he believed he may have been able to carry out the duties listed, but that he acted in accordance with the advice of Dr Parikh and did not return to work.
23. On 29 January 2010 Linfox issued another RTW Schedule.[13] This schedule was in the same format as the one issued in December 2009 and set out similar restricted duties. However this schedule proposed that Mr Karhani work eight hours per day, five days per week from 1 February 2010 until 5 March 2010. Again, in cross-examination, Mr Karhani said that from 1 February 2010 he was physically able to do the duties listed full-time but as Dr Parikh did not approve his return to work he could not do so.[14]
[13] Exhibit R8.
[14] Transcript 23.5.11 p-31.
24. On 15 March 2010 Mr Karhani returned to work for three hours per day, five days per week. This was approved by Dr Parikh. He was restricted to lane marshalling (supervising the placement of pallets and cages) and some computer work. On 27 April 2010 Mr Karhani consulted Dr Parikh complaining of increased back pain. Dr Parikh advised Mr Karhani that he was unfit to do any work for the next month and certified accordingly.
25. Mr Karhani continued to suffer back pain. Dr Parikh continued to certify that he was totally unfit for work until 24 February 2011 and Mr Karhani did not return to work until that date.
26. In May 2010 Dr Parikh referred Mr Karhani to Mr Mills, Orthopaedic Surgeon. Mr Mills referred him to Mr Morokoff, Neurosurgeon. I will refer to the reports of Mr Morokoff later.
27. Mr Karhani said that during the time he was off work after 27 April 2010 his pain was such that he did not believe that he was fit to return to work. In this time his pain level increased and he had difficulty in walking, sitting and driving a car. If he drove a car for more than ten minutes without a rest his back became very sore.[15] He said that by September and October 2010 the pain was “unbearable”[16] but that by November he was getting better and the pain was less.
[15] Transcript 23.5.11 p-31.
[16] Transcript 23.5.11 p-33.
28. During this period of absence from work Mr Karhani received physiotherapy three times per week and went swimming and walking. By 2011 he was feeling better and was able to walk for longer periods. He found that walking relieved his pain.
29. On 24 February 2011 Mr Karhani again commenced a graduated return to work, Dr Parikh having certified that he was fit to do so. He said that he has been able to cope with the increasing hours of work better than he was able to previously and he has been able to rest when necessary.
30. On 28 March 2011 Linfox decided that Mr Karhani was able to earn his normal weekly earnings from 1 March 2010.[17] This decision was affirmed on 29 April 2011.[18]
[17] Exhibit R13.
[18] Exhibit R14.
31. Mr Karhani was on annual leave when this matter was heard. He proposed to try working six hours per day when he returned from leave.
Mr P Valoppi, Rehabilitation Consultant
32. Mr Valoppi is a Rehabilitation Consultant employed by Workfocus Australia which was engaged by Linfox to assess Mr Karhani. He has a Bachelor of Occupational Therapy degree.
33. Mr Valoppi (an employee of Linfox) made notes in relation to his dealings with Mr Karhani and with Dr Parikh. I accept him as an honest witness and I make the findings of fact set out in the following nine paragraphs based on his evidence.
34. Mr Valoppi attended the workplace meeting with Mr Karhani, Dr Ho and Mr Harris on 19 November 2009. Prior to this meeting Mr Valoppi met with Mr Karhani to obtain some background information. Mr Valoppi was unable to discuss the proposed duties with Mr Karhani as at that stage he did not know what Linfox was suggesting in this regard.
35. Mr Valoppi confirmed that at the meeting with Dr Ho and Mr Harris, Mr Karhani said that he thought he had the capacity to undertake the duties proposed but that he wanted to discuss them with his treating doctor before committing himself to undertake the work. Otherwise Mr Karhani's input into the meeting was “minimal”.[19]
[19] Transcript 25.05.11.
36. On 25 November 2009 Mr Valoppi spoke to Dr Parikh by telephone. Dr Parikh told Mr Valoppi that he was not willing to discuss the proposed return to work plan or Mr Karhani's treatment until Linfox made a decision as to whether it accepted Mr Karhani's claim. His reason for this was that he believed Mr Karhani had been mismanaged by his employer and was being disadvantaged.
37. On 25 November 2009 Mr Valoppi advised Linfox of his discussion with Dr Parikh. Mr Karhani’s claim was accepted that day.
38. Mr Valoppi spoke to Dr Parikh on 26 November 2009 and forwarded to him copies of documents relating to Mr Karhani. He spoke to Dr Parikh again on 2 December 2009 and they discussed the duties and hours of work proposed for Mr Karhani by Dr Ho. Dr Parikh told Mr Valoppi that he considered that the proposed return to work schedule was too quick and that he was not prepared to certify that Mr Karhani had any capacity to return to work before he reviewed him on 18 December 2009. They discussed a more gradual return to work program and Mr Valoppi told Dr Parikh that he would send him an amended program “in line with what they discussed.” [20]
[20] Transcript 25.05.11.
39. Mr Valoppi then discussed the matter with a representative of Linfox. On 4 December 2009 Mr Valoppi (acting on behalf of Linfox) issued the RTW Schedule to which I have already referred.[21] He sent a copy to Dr Parikh. This schedule contained exactly the same proposed hours of work as the previous schedule (dated 20 November 2009) and proposed that Mr Karhani commence work on 14 December 2009.
[21] Exhibit R6.
40. Mr Valoppi spoke to Dr Parikh on 3 December 2009 and requested a meeting with both Dr Parikh and Mr Karhani. Dr Parikh did not agree to this request but agreed to review Mr Karhani on 10 December 2009.
41. On 11 December 2009 Mr Valoppi spoke to Mr Karhani who told him he had been reviewed by Dr Parikh and that Dr Parikh had not made any changes to his certificate of incapacity for work. He told Mr Valoppi that he had been referred for physiotherapy. On the same day Mr Valoppi spoke to Dr Parikh who confirmed what Mr Karhani had said. Dr Parikh told Mr Valoppi that Mr Karhani was not fit to return to work at that time and that he would review him on 18 December 2009. He also told Mr Valoppi that he did not have time to meet with him and Mr Karhani before Christmas.
42. Mr Valoppi had further discussions with Dr Parikh concerning Mr Karhani in January 2011, March 2011, April 2011, May 2011 and July 2011.
Dr Parikh, General Practitioner
43. Dr Parikh has about 40 years’ experience in general practice. He holds a MBBS, Bachelor of Medicine, Bachelor of Surgery, Diploma in Laryngology and Otorhinology and Master of Surgery.
44. Dr Parikh provided reports dated 25 May 2010 and 9 November 2010. He gave evidence.
45. Dr Parikh has been Mr Karhani's general practitioner since February 2003.[22]
[22] Exhibit A11.
46. Mr Karhani consulted Dr Parikh on 3 September 2009. The entry in Dr Parikh’s clinical notes for that day reads:
Physical labour worker loading truck for 3 years.
Since July 2008, C/O pain in L.S. region went gradually worse from June 2009.
Seen by factory Doctor and Physiotherapist.
D.O.A. 10.07.08. Attended company Doctor given light duties.[23]
[23] Exhibit A11.
According to the clinical notes Mr Karhani consulted Dr Parikh concerning the pain in his back on 21 September 2009 and on 9 October 2009.
47. Dr Parikh issued a number of certificates relating to Mr Karhani's unfitness for work as a result of his back condition. These certificates indicated that he was totally unfit for work for the period 9 October 2009 until 15 March 2010 and from 27 April 2010 to 24 February 2011.
48. In March 2010 Dr Parikh certified that Mr Karhani was fit to return to work for three hours per day, five days per week, on restricted duties. When asked as to his reason for so certifying Dr Parikh said that “he was somewhat better, and then we could try to make him work and just see how he goes.” [24]
[24] Transcript 24.5.11 p-5.
49. When Mr Karhani consulted Dr Parikh on 27 April 2010 Mr Karhani's back pain was worse and Dr Parikh certified him totally unfit for work for four weeks. Dr Parikh advised him that he should stop work and continued to certify him totally unfit for work until 24 February 2011.
50. On 25 May 2010 Dr Parikh reported that Mr Karhani:
Has continued to exacerbate things over the last 18 months & that he really needs a period of rest with avoidance of lumbar flexion, driving & lifting of weight anything over a few kilos. He will progress with some conservative management over few months... [25]
[25] Exhibit A1.
51. In a report dated 9 November 2010 Dr Parikh stated:
In my opinion he is physically unfit to perform & resume work at any capacity.
He is advised to continue to take preventive & supportive line of treatment to prevent further complication & disability.” [26]
[26] Exhibit A2.
52. In February 2011 Dr Parikh certified that Mr Karhani was fit for modified duties on restricted hours and he returned to work on this basis. At the time of the hearing of this application Mr Karhani was on annual leave and it was proposed that after his leave he return to work for six hours per day, five days per week. Dr Parikh has been reviewing Mr Karhani about once each two weeks.
53. Dr Parikh was questioned at length about the basis for his opinion that Mr Karhani was totally unfit for work for the periods he had certified, particularly in view of the differing opinions of other medical practitioners. Dr Parikh said that in forming his opinion he had taken into account a combination of factors including observation, examination, symptoms, the results of imaging and what Mr Karhani told him. He said that he was assisted by having known Mr Karhani for a long time. On the question of Mr Karhani's capability to return to work Dr Parikh considered what he was told by Mr Karhani, but this was not determinative in his decision as to the capacity of Mr Karhani to do the work being offered.
Mr Morokoff, Neurosurgeon
54.Mr Karhani first consulted Mr Morokoff on 4 May 2010.
55.In his report dated 4 May 2010 Mr Morokoff stated:
His CT and MRI scans show a significant broad based disc bulge at L4/5 which is worse on the left and would be definitely impinging the L5 nerve root in the lateral recess, probably on both sides. There is a mild degree of central canal stenosis associated with the disc prolapse.
In summary I think this fellow has certainly a significant L4/5 disc prolapse which is almost certainly the cause of his back pain and leg pain. I think he has continued to exacerbate things over the last 18 months and that he really needs a period of rest with avoidance of lumbar flexion, driving and lifting anything over a few kilo’s. At this stage I am keen to see how progresses with some further conservative management over the next few months [sic]. [27]
…
56.On 29 June 2010[28] Mr Morokoff reported:
He can only do very light duties at the present time. He would be assisted by not having to drive 30 minutes to the workplace. Taxi assistance may be an option. Or else cutting down his work hours to only 2-3 days per week.
At the time he gave this report Mr Morokoff expected that this restriction on work capacity would last for three to six months.
[27] Exhibit A9.
[28] Exhibit A10.
57. Mr Morokoff gave evidence. In his opinion Mr Karhani would not have been able to comply with the rapidly escalating return to work plan proposed in December 2009 if his condition was as it was when Mr Morokoff examined him in May 2010.
58. Mr Karhani was re-examined by Mr Morokoff on 14 July 2010, 19 October 2010 and 6 February 2011. In the opinion of Mr Morokoff Mr Karhani's condition was much the same in July 2010 and October 2010 but that he had improved by February 2011. In his opinion this improvement was a result of natural healing brought about by “time and rest.”
59. When questioned by Counsel for Linfox, Mr Morokoff did not agree that there was a functional component in Mr Karhani's behaviour. He said that Mr Karhani's complaints were “exactly consistent” with what was shown on the imaging films. In his opinion driving a motor vehicle would have been a “big issue” for Mr Karhani up to and including the time of the October 2010 consultation as this is usual in a person suffering a disc bulge.
60. Mr Morokoff did not disagree with the proposition that Mr Karhani was totally incapacitated for work in May 2010. However in his opinion, by October 2010 Mr Karhani was able to work a few hours per week, but not in a sitting position. When Mr Karhani consulted Mr Morokoff in October 2010 Mr Karhani said that he was “slightly better” and was able to do more walking and swimming; he said that he experienced occasional pain in his legs.
Dr Ho, General Practitioner
61. Dr Ho is a general practitioner with 30 years’ experience in general practice. He has a special interest on occupational health and has completed a number of courses in this field.
62. Dr Ho gave evidence and provided several reports.[29]
[29] Exhibits R2, R4, R16, R17, R18, R19, R20.
63. Mr Karhani was examined by Dr Ho on 21 October 2009 at the request of Linfox. The examination was for the purpose of assisting in the ongoing management of Mr Karhani's rehabilitation.
64. In his report of 23 October 2009[30] Dr Ho stated that testing indicated that Mr Karhani was exaggerating his pain and that he had “far better capability than he claims or realizes...” He suggested a graduated return to work plan on restricted duties.
[30] Exhibit R2.
65. Following the meeting with Mr Karhani at the workplace Dr Ho provided a report dated 20 November 2009.[31] In that report he identified the various types of work which in his view Mr Karhani could perform and recommended a return to full‑time work plan over eight weeks. Dr Ho noted that Mr Karhani had agreed that he could carry out the tasks identified but that he deferred any acceptance of the plan to his treating doctor.
[31] Exhibit R4.
66. Dr Ho re-examined Mr Karhani on 23 June 2010. On 24 June 2010 he reported that in his opinion Mr Karhani had capacity to work at restricted duties and that the most recent return to work plan was “appropriate in terms of the hours and suitable duties...”[32] He stated that Mr Karhani's prognosis was one of slow recovery in time. Dr Ho found no exaggeration of symptoms at this examination.
[32] Exhibit R16.
67. In a supplementary report dated 8 July 2010 [33] Dr Ho stated that he believed Mr Karhani was able to return to full-time work on a graduated basis over an eight week period. In his report of 18 August 2010 Dr Ho confirmed that in his opinion Mr Karhani had “a capacity to work from the 14th of December in accordance with the return to work plan dated 04/12/2009 and the 29/01/2010.” [34]
[33] Exhibit R17.
[34] Exhibit R18.
Dr Polke, Orthopaedic Surgeon
68. Dr Polke examined Mr Karhani on 5 November 2009 on behalf of Linfox. He provided reports dated 5 November 2009, 8 July 2010 and 1 February 2011 and he gave evidence.
69. On 5 November 2009[35] Dr Polke reported that Mr Karhani could perform light duties which did not require repeated bending and heavy lifting and that he could start working a couple of hours three days per week, gradually increasing. He stated that there had been no voluntary exaggeration of symptoms during the examination and that the symptoms and findings were consistent with the claimed injury.
[35] Exhibit R3.
70. Dr Polke re-examined Mr Karhani on 8 July 2010. On the same day Dr Polke reported:
On reviewing the RTW schedule by Linfox dated 4 December 2009 and the RTW schedule by Linfox dated 29 January 2010, I concur with the duties 1 to 8 and the gradual increase in hours on page 2 of their report.
I refer to Work Focus Australia initial worksite assessment on 19 November 2009 and believe that he has a capacity to work at the level and hours proposed in the RTWP of that date.[36]
[36] Exhibit R21.
He recommended Mr Karhani commence work starting two hours a day, increasing by one hour per week until full-time hours were reached. He recommended the more gradual return to work at that time because Mr Karhani had been off work for a longer period than in February 2010.
71. As at the date of the surveillance (12 October 2010) Dr Polke was of the opinion that there was “probably not” any problem with Mr Karhani returning to full‑time work.[37] Dr Polke was unsure whether he had viewed the surveillance film but recalled seeing surveillance reports.
[37] Transcript 25.5.11.
72. In answer to a question by Counsel for Linfox Dr Polke said that if he had been presented with the December 2009 return to work plan and told by Mr Karhani that he thought he could do the work, he would have strongly recommended to Mr Karhani that he do so. However Dr Polke added the reservation that if symptoms recurred he would need to reassess the situation.
Dr Hjorth, Consultant Neurologist
73. Dr Hjorth assessed Mr Karhani on behalf of Linfox on 12 October 2010.
74. In his report dated 12 October 2010 Dr Hjorth expressed the opinion that Mr Karhani was able to do work that did not involve bending or lifting. In his view Mr Karhani should have started two hours per day with gradual increase.[38]
[38] Exhibit A7.
Surveillance film and surveillance reports
75. On 12 October 2010 Mr Karhani was filmed undertaking a number of activities. This film was shown to Mr Karhani during cross-examination.[39]
[39] Exhibit R1.
76. The film showed Mr Karhani engaged in the following activities:
·driving a motor vehicle;
·walking up a hill;
·standing outside a building, apparently waiting for an appointment;
·refuelling his vehicle;
·walking around a shopping mall with his family;
·sitting with his family at a café;
·lifting a small stroller into the boot of his vehicle.
77. The filming was undertaken intermittently between 8.35 am and 1.35 pm. The film ran for 40 minutes and 55 seconds.[40]
[40] Exhibit A12.
78. The surveillance of Mr Karhani was carried out by MPOL Group Pty Ltd. The company provided reports dated 1 November 2010 and 14 December 2010.[41] The first report indicates that surveillance on Mr Karhani was conducted for a total of 21 hours over a period of four days being 12, 18, 19 and 24 October 2010. Mr Karhani was observed only on 12 October 2010.
[41] Exhibits A12 and A13.
79. The second report states that further surveillance of a total of 15 hours was conducted on 10 November 2010 and 1 December 2010. Mr Karhani was observed to drive his vehicle from his home to the vicinity of his solicitors’ office on 10 November 2010. Mr Karhani was not observed during eight and a half hours of surveillance of his home on 1 December 2010.
LEGISLATION
80. Section 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) provides for the payment of compensation to an injured worker who is incapacitated for work. Subsection 19(2) provides:
Subject to this Part, Comcare is liable to pay to the employee in respect of the injury, for each week that is a maximum rate compensation week during which the employee is incapacitated, an amount of compensation worked out using the formula:
NWE - AE
where:
"AE" is the greater of the following amounts:
(a) the amount per week (if any) that the employee is able to earn in suitable employment;
(b) the amount per week (if any) that the employee earns from any employment (including self-employment) that is undertaken by the employee during that week.
"NWE" is the amount of the employee's normal weekly earnings.
81. Suitable employment is defined in section 4 which reads so far as is relevant:
"suitable employment" , in relation to an employee who has suffered an injury in respect of which compensation is payable under this Act, means:
(a)in the case of an employee who was a permanent employee of the Commonwealth or a licensee on the day on which he or she was injured and who continues to be so employed--employment by the Commonwealth or the licensed corporation, as the case may be in work for which the employee is suited having regard to:
(i)the employee's age, experience, training, language and other skills;
(ii)the employee's suitability for rehabilitation or vocational retraining;
(iii)where employment is available in a place that would require the employee to change his or her place of residence--whether it is reasonable to expect the employee to change his or her place of residence; and
(iv)any other relevant matter.
…
82. So far as is relevant subsection 19(4) provides:
(4) In determining, for the purposes of subsections (2) and (3), the amount per week that an employee is able to earn in suitable employment, Comcare shall have regard to:
…
(b)where, after becoming incapacitated for work, the employee received an offer of suitable employment and failed to accept that offer--the amount per week that the employee would be earning in that employment if he or she were engaged in that employment;
…
(f)where paragraph (b), (c), (d) or (e) applies to the employee--whether the employee's failure to accept an offer of employment, to engage, or to continue to engage, in employment, to undertake, or to complete, a rehabilitation or vocational retraining program or to seek employment, as the case may be, was, in Comcare's opinion, reasonable in all the circumstances; and
(g)any other matter that Comcare considers relevant. [42]
[42] Part VIII of the Act imposes the same obligations on a licensee corporation as are imposed on Comcare in relation to the payment of compensation for loss of earnings.
ISSUES FOR DETERMINATION
83. The following issues arise for determination:
1)Did Mr Karhani receive “an offer [or offers] of suitable employment” at any time between 10 October 2009 and 24 February 2011?
2)If he did, was Mr Karhani’s failure to accept the offer(s) reasonable in all the circumstances?
REASONING
Did Mr Karhani receive “an offer [or offers] of suitable employment” at any time between 10 October 2009 and 24 February 2011?
84. It was argued by Linfox that Mr Karhani was able to carry out the duties set out in each of the return to work plans dated 4 December 2009 and 29 January 2010 and that on this basis each plan was an offer of suitable employment.
85. It was not in dispute the return to work plans issued to Mr Karhani on 4 December 2009 and 29 January 2010 were offers of employment. I am satisfied that each offer was an ongoing offer which could have been accepted by Mr Karhani before or at any time after the proposed date of his return to work specified in the offer. The question is whether either offer was an offer of suitable employment at any time in the period commencing 14 December 2009 and ending on 24 February 2011, when Mr Karhani returned to work (excluding the period when Mr Karhani was at work in March and April 2010).
86. Taking into account all of the evidence I am not satisfied that either offer was an offer of suitable employment. I have reached this conclusion because I am not satisfied that the work offered was work which Mr Karhani could have undertaken consistently with his rehabilitation.
87. In reaching this decision I have preferred the opinions as to Mr Karhani’s ability to return to work expressed by Dr Parikh to those who have expressed a different view. Dr Parikh is a very experienced practitioner who has the advantage of assessing Mr Karhani on many occasions over a considerable period. I accept that he made a considered assessment of Mr Karhani’s ability to return to work taking into account the various factors to which I have already referred. Dr Parikh showed a willingness to have Mr Karhani attempt to return to work in March 2010, although this attempt proved unsuccessful.
88. It was put to Dr Parikh on behalf of Linfox that he had obstructed Mr Karhani’s return to work. Dr Parikh denied this. I am satisfied that at all times Dr Parikh acted in what he considered to be the best interests of his patient and honestly held the opinions he expressed, both to Mr Karhani and to this Tribunal. I am satisfied that at no time did Dr Parikh obstruct, or attempt to obstruct, Mr Karhani’s return to work. The evidence given by Mr Valoppi confirmed that there were several discussions between himself and Dr Parikh as to an appropriate return to work program for Mr Karhani.
89. Dr Parikh was supported by Mr Morokoff in relation to the unsuitability of the return to work schedule proposed in December 2009. He agreed with the need for a period of rest. Mr Morokoff did not observe any indication of exaggeration by Mr Karhani and reported that his complaints were consistent with the objective findings as to his condition.
90. I take into account also that in his discussion with Dr Parikh on 2 December 2009, Mr Valoppi agreed that a return to work program that was more gradual than that proposed on 20 November 2009, was appropriate. Despite this the program proposed in the document dated 4 December 2009 was the same as that proposed earlier. I am satisfied that Mr Valoppi was of the opinion that the more gradual return to work proposed by Dr Parikh was suitable employment for Mr Karhani at that time. There is no evidence to explain why the offer of employment made on 4 December 2009 was not made in the terms discussed by Mr Valoppi and Dr Parikh.
91. There is considerable evidence to support the view that by October 2010 the duties offered to Mr Karhani on 29 January 2010 were suitable. However I prefer the opinion of Dr Parikh to that of the other practitioners who gave evidence. Again, I have reached this conclusion because, as a treating practitioner, Dr Parikh has had a greater opportunity to assess Mr Karhani than the other practitioners and I am satisfied that he honestly held the opinions which he expressed. I am persuaded also that Dr Parikh was acting in the best interests of his patient and honestly believed that his interests were best served by an extended period of absence from work. The fact that Mr Karhani has been able to return to work gradually since 24 February 2011 indicates that Dr Parikh’s management of Mr Karhani’s condition has been successful.
92. Nothing in the surveillance film or the reports causes me to reject the views expressed by Dr Parikh. The film was taken on one day only. There is no evidence that this was a representation of Mr Karhani’s normal activity at this time. The only activity which it showed that Mr Karhani said he had not undertaken at about the time of the surveillance was lifting his child’s stroller. I do not consider that this was sufficient to raise a reasonable doubt as to his credibility. Further a considerable amount of the film did not depict Mr Karhani. I have considered the statements of the person or persons who observed Mr Karhani that he appeared to conduct his activities in a normal manner. These observations are of minimal assistance as the author(s) of the reports were not called to give evidence and I have no evidence as to their qualifications to make this assessment taking into account Mr Karhani’s injury.
93. I have taken into account also that on the first day Mr Karhani was observed, he travelled to a medical appointment and on the second day he travelled to a point in the vicinity of the offices of his solicitors. I am satisfied that probably the purpose of this journey was to attend an appointment with them. Mr Karhani was not observed to be engaged in any activities at or away from his home on four other days when surveillance was conducted.
94. Also I take into account that the film showed that Mr Karhani rested for some time whilst walking around the shopping mall. Further I am of the view that it is unsafe to make findings based on activities such as a period of driving and/or walking when the entire period is not recorded. In this regard I have taken into account that the surveillance report refers to a break in the period of driving which is not recorded on the film.
Was Mr Karhani’s failure to accept the offers of employment reasonable in all the circumstances?
95. As I have decided that neither offer was an offer of suitable employment it is not essential to proceed further. However, in case I am wrong in my conclusion as to the suitability of the employment offered I will give further consideration to this issue.
96. As I am satisfied that Mr Karhani acted in good faith in accepting the advice of his general practitioner who had treated him for several years, I am satisfied that his failure to accept the offers of employment was reasonable in all the circumstances. I find support for this conclusion in the Tribunal’s decision in Re Sollazzo and Comcare. [43]
[43] [2000] AATA 65.
97. I would have reached this conclusion even if I had decided that either offer was an offer of suitable employment, contrary to the opinion of Dr Parikh. On the evidence before me, in the circumstances in which Mr Karhani was placed, it was reasonable for him to act in accordance with the advice of his general practitioner. This is a matter in which there is a genuine difference of medical opinion based on several factors. It is not a matter in which the treating practitioner’s view has been shown to be incorrect and such that it could not reasonably be relied upon.
THE USE OF SURVEILLANCE MATERIAL
98. I am concerned as to the manner in which Linfox dealt with the surveillance film and reports in these applications. The existence of the film and the reports was not disclosed to the Tribunal until after the hearing commenced. The film was first produced during the cross-examination of Mr Karhani. The reports were only produced after they were referred to by Dr Polke in cross-examination by Counsel for Mr Karhani. This was on the third day of the hearing. Once the reports were produced by Linfox they were tendered on behalf of Mr Karhani in support of his case.
99. In my view the film and the reports are documents to which section 37 of the Administrative Appeals Tribunal Act 1975 (Cth) applies. Linfox should have complied with this section of the Act and made an application under subsection 35(2) had it considered it appropriate. Subsection 37 (1AF) refers to this procedure.
100. Some of the problems which can arise from the failure to disclose such material in the appropriate manner were highlighted in the hearing of these applications.
101. It was only a result of a chance reply by Dr Polke that the Tribunal and Mr Karhani and his representatives became aware of the existence of the reports and that Dr Polke had considered them in forming the opinions he expressed. The allegations in the surveillance report dated 14 December 2010 were not put to Mr Karhani in cross-examination.
102. Further, when he gave evidence, Dr Polke was uncertain whether he had ever viewed the surveillance film. In his report of 1 February 2011 Dr Polke stated that he had viewed the film and referred to the surveillance reports. Although this report was dated 1 February 2011 it was not lodged with the Tribunal until it was referred to during the hearing. In these circumstances I conclude that it was withheld to avoid the disclosure of the surveillance material.
103. It is to be noted that on 24 September 2010 the Tribunal directed that Linfox give to Mr Karhani and to the Tribunal copies of all reports on which it intended to rely at the hearing.
104. In my opinion, in this matter Linfox failed to meet its obligation to assist the Tribunal in accordance with subsection 33(1AA) of the Act.
105. In expressing these views I have given careful consideration to the judgements of the Federal Court in Australian Postal Commission v Hayes [44] and Australian Postal Corporation v Bessey. [45] In my view nothing has been said by the Federal Court which exempts a decision-maker from complying with the obligations imposed by the Act. In Aunela and Telstra Corporation I set out the procedure which I consider should be followed.[46]
DECISIONS
[44] (1989) 23 FCR 320.
[45] (2001) 32 AAR 508.
[46] (2007) 95 ALD 785.
Application 2010/1117
106. The decision under review made 17 February 2010 is set aside and in substitution it is decided that Mr Karhani was totally incapacitated for work from 14 December 2009 to 14 March 2010 inclusive and from 27 April 2010 to 23 February 2011 inclusive.
Application 2011/1768
107. The decision under review made 29 April 2011 is set aside and in substitution it is decided that Mr Karhani was totally incapacitated for work from 1 February 2010 to 14 March 2010 inclusive and from 27 April 2010 to 23 February 2011 inclusive.
I certify that the 107 preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President J W Constance
Signed: ..(sgd K Peterson)........................
K Peterson, AssociateDates of Hearing 23, 24 and 25 May 2011
Date of Decision 22 July 2011
Counsel for the Applicant Ms A Malpas
Solicitor for the Applicant Victorian Compensation Lawyers
Counsel for the Respondent Mr J Ferwerda
Solicitor for the Respondent Thomsons Lawyers
1
3
2