KRISTINE CLEMENT and COMCARE
[2013] AATA 638
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2010/3449
2013/0722
General Administrative Division )
Re: Kristine Clement
Applicant
And: Comcare
RespondentDIRECTION
TRIBUNAL: Professor RM Creyke, Senior Member
DATE: 17 September 2013
PLACE: Canberra
The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in these applications in the following way: at paragraph 1, replace “Mr Kristine Clement” with “Ms Kristine Clement”.
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Professor RM Creyke, Senior Member
[2013] AATA 638
Division GENERAL ADMINISTRATIVE DIVISION File Numbers
2010/3449, 2013/0722
Re
KRISTINE CLEMENT
APPLICANT
And
COMCARE
RESPONDENT
Decision
Tribunal PROFESSOR RM CREYKE, SENIOR MEMBER
Date 9 September 2013 Place Canberra The decisions under review are affirmed
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Professor RM Creyke, Senior Member
Catchwords
COMPENSATION – Commonwealth employees – rehabilitation program – whether reasonable to close program – whether rehabilitation authority should have chosen alternative provider following breakdown of relationship between employee and provider – application for alternative provider made some 17 years after closure of program – employee has not been employed since 1994
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth) sections 4(1), 5A, 34F, 34H, 37
Cases
Chang v Comcare (1997) (unreported, FCA 97/823, 25 June 1997)
Re Clement and Comcare [2010] AATA 296.
Clement v Comcare [2012] FCA 166.
Clement v Comcare [2012] FCAFC 118.
Comcare v Chang (1996) 24 AAR 120
Re Fox and Department of Defence [1995] AATA 387
Rana v Military Rehabilitation and Compensation Commission [2011] FCAFC 80
REASONS FOR DECISION
PROFESSOR RM CREYKE, SENIOR MEMBER
9 September 2013
Mr Kristine Clement, born 1950, has an accepted claim for work related stress induced reactive depression which was deemed to have occurred on 4 September 1991. There are two decisions under review: to close Ms Clement’s Return to Work Plan (Matter 2010/3449); and a decision as to choice of rehabilitation provider (Matter 2013/0722). These matters have a considerable history, some of which is recounted in these reasons.
In late 1992 Ms Clement was referred to Health Access Pty Ltd to undergo an initial rehabilitation assessment with a view to development of a Return to Work Plan (RTWP). That plan was proposed on 29 December 1992. The RTWP was signed in February 1993. She returned to work for a short period soon after.
Ms Clement’s general practitioner, Dr Anna Ostberg, in a letter of 29 March 1993 recommended that her RTWP exclude further counselling with the Health Access team. In a letter of 2 April 1993 to Comcare, copied to the ABS, Ms Clement requested a reconsideration of the choice of provider, Health Access Pty Ltd, as she had no confidence in them as a provider and she claimed rehabilitation services by them were having an adverse impact on her.
Following a breakdown in negotiations between Ms Clement and Health Access Pty Ltd, the RTWP was closed in May 1993, due to her desire not to involve Health Access Pty Ltd as her provider. On 1 April 1993, Ms Clement wrote to the ABS to complain about the choice of rehabilitation service provider. A reconsideration decision dated 14 February 2013 affirmed the initial choice of rehabilitation provider. Ms Clement sought further review on 18 February 2013 of the decision by the Tribunal not to provide her with an alternative rehabilitation provider.
Ms Clement, by letter received on 15 June 2010, requested Comcare conduct a reconsideration of the closure of her RTWP as previously requested, she said, in April 1993. Comcare responded on 23 July 2010 by reviewable decision affirming the decision under review. Ms Clement sought further review of that decision by the Tribunal on 16 August 2010.
Ms Clement accepted a redundancy from the APS on 4 September 1994.
Background
Ms Clement was employed as a database administrator by the Australian Bureau of Statistics (ABS/agency). There is no issue as to the reasonableness of the decision by the ABS to institute a RTWP for Ms Clement. That decision followed Ms Clement suffering a stress induced reactive depression which prevented her working.
The following is a brief account of the circumstances in which Ms Clement contends she was injured by her former employment. Ms Clement claimed she discovered data security problems in the Foreign Trade Section of the agency. She had prepared a paper presented at an agency meeting in January 1991 concerning the problems. As a consequence, according to Ms Clement, she was transferred from her position in the section in September 1991. That move led her to lodge an incident report and to seek compensation. Others took over her position and according to Ms Clement they confirmed her findings about the data security problems.
Ms Clement’s complaints about how the ABS handled her complaints concerning the matters were investigated, among others, by the Commonwealth Auditor-General, the Privacy Commissioner, and the Merit Protection and Review Agency. Ms Clement claims their investigations vindicated her having been badly treated by the agency.
Despite the incident and events which she claimed led to her injury, Ms Clement said she was keen to return to work after 1991 and she was involved in a rehabilitation program in order to assist her to do so, a program which she agreed to and which was set out in a document she signed on 9 February 1993. Within a short period of implementation, Ms Clement claimed the RTWP was not satisfactory because, among other things, there had been breaches of her privacy. Ms Clement asked for a change of rehabilitation service provider, but ABS closed her RTWP, decided that the provider was a reasonable service, and did not provide her with an alternative rehabilitation provider.
The Tribunal is aware that there are factual findings made earlier by the Tribunal, differently constituted, and by the Federal Court which touch on the matters involved in this claim. In particular, the Tribunal in the earlier decision of Re Clement and Comcare[1] had found in particular that Ms Clement suffers from a delusional disorder which was present and operative prior to September 1991 and persists, and that the aetiology and causes of the delusional disorder were unknown. As a consequence the Tribunal in that matter was not satisfied that Ms Clement’s reactive depression condition was due to her employment. Those findings were upheld by the Federal Court,[2]and on further appeal by the Full Court of the Federal Court.[3] This Tribunal is accordingly bound by those findings.
[1] Re Clement and Comcare [2010] AATA 296.
[2] Clement v Comcare [2012] FCA 166.
[3] Clement v Comcare [2012] FCAFC 118.
However, the Tribunal in Re Clement and Comcare had also noted:
Ms Clement raised issues concerning her rehabilitation program; she asserted that the program remained in force as it had been closed prematurely and illegally. It is not necessary for us to decide the first question concerning the consequential effects of any premature closure. In the absence of injury, there can be no entitlement to rehabilitation under the Act. Clearly enough Ms Clement objected to the service provider and sought reconsideration of that aspect of the determinations relating to her rehabilitation program. It appears that no such reconsideration eventuated. That matter is not on foot in these proceedings and the Tribunal has no jurisdiction in relation to it; it has not been raised or considered in any decision-making process at the primary or reconsideration stages in any of the matters Ms Clement has placed before the Tribunal.[4]
[4] Re Clement and Comcare [2010] AATA 296 at [40].
This Tribunal considers those outstanding issues.
Matter 2013/0722
The issue is whether Health Access Pty Ltd was a suitable rehabilitation provider. In brief the history is that on 6 February 1992, Dr Ostberg was contacted by ABS to ask whether ‘from a medical point of view…[Ms Clement] should undertake a Rehabilitation Case Management Plan’. Initially, Dr Ostberg did not respond to this letter, nor subsequently to two written and several phone requests.
Ultimately, a case management program was approved and accepted by all parties around 9 February 1993. Counselling was to be provided by Ms Gorgenyi, a clinical psychologist, of Health Access Pty Ltd, on referral from Dr Ostberg. Dr Ostberg signified her approval of the arrangement on 15 February 1993. Ms Gorgenyi saw Ms Clement on two occasions. She provided a report on 16 March 1993 which was provided to Dr Ostberg. Dr Ostberg subsequently told Ms Clement that the report had made adverse comments about her mental state. As a result, Ms Clement decided she no longer wanted to be counselled by Ms Gorgenyi.
On 29 March 1993, Dr Ostberg certified that the plan should be amended to exclude counselling by Health Access and she notified the ABS that she had arranged an alternative counsellor, Ms Adrienne Huber. Ms Clement also wrote to the ABS on 29 March 2011 to inform them of her intention to make a complaint about an alleged breach of privacy committed by Ms Gorgenyi.
On 1 April 1993, Ms Clement wrote to the ABS to complain about the choice of rehabilitation service provider. She cited grounds including that she had no confidence in the provider, and the choice was ‘having an adverse effect’. On 2 April 1993, Ms Huber wrote to the ABS criticising an assessment of Ms Clement made by Ms Gorgenyi, and requesting she be removed as the rehabilitation provider. A meeting was arranged on 6 April 1995 between the ABS, Comcare, Dr Ostberg, Ms Gorgenyi and Ms Clement to discuss the issues which had arisen. The meeting did not resolve the issues.
On 7 May 1993, Health Access Pty Ltd agreed it was ‘no longer appropriate’ for it to continue rehabilitation intervention with Ms Clement following the request by Ms Clement, and a breakdown in relationship between Ms Clement and Health Access Pty Ltd. The letter noted that the breakdown had arisen despite meetings on two occasions, one in 1992 and another in 1993, to attempt to resolve issues relating to the implementation of the program. Health Access recommended that Ms Clement be assessed by a clinical neuropsychologist to assist in the resolution of her issues.
On 18 May 1993, the Manager, Consultancy Services, Comcare noted that it was not appropriate to have Ms Huber involved as part of the Return to Work plan to any extent more than any other treatment provider. The manager’s view was that the ABS had ‘done more than could reasonably be expected in trying to resolve this case and assist Ms Clement’. He advised that since Ms Clement had requested Health Access Pty Ltd be removed as the provider and refused contact with them, the RTWP was nullified and should be closed. On 19 May 1993 the ABS advised they had closed the program.
A letter from the ABS to Comcare dated 19 May 1993 noted that since the meeting on 1 April 1993, Ms Clement had initially requested that Ms Huber and Dr Ostberg become her rehabilitation provider, but subsequently changed her mind about them providing the rehabilitation service. She indicated ‘she is not sure whether she wants a provider at all’. The ABS also advised Ms Clement that neither person was an ‘approved program provider’ which prevented the rehabilitation authority from choosing them as providers.
The ABS sought a review by Comcare of the case. Comcare wrote to Ms Clement on 20 July 1993 pointing out that her assertions of lack of authority by several of the decisions-makers in relation to her RTWP were incorrect and that the decision-maker in choice of her rehabilitation provider ‘took considerable effort to impress upon them the need for Health Access Pty Ltd to be aware of the sensitivity of the matters that led up to your claim’.
Legislation
The relevant legislation is found in the Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act), Part III, particularly section 37. As the decisions under review were made subsequent to the introduction of the amendments to the Act which commenced on 1 December 1988, and those decisions relied on the provisions in the current Act, the Tribunal has applied the same version of the Act. In any event, there are no differences of significance for the present matter between the current and the previous versions of the Act.
Issues
The issues in the matters under review are:
·whether the choice of rehabilitation provider was reasonable; and
·whether it was reasonable to close Ms Clement’s return to work plan.
Consideration
Whether the choice of rehabilitation provider was reasonable (Matter 2013/0722)
The ABS as the rehabilitation authority was authorised to make a decision that Ms Clement, who had suffered an injury resulting in an incapacity for work or an impairment, should undertake a rehabilitation program (section 37(1)). ABS had chosen Health Access Pty Ltd as the rehabilitation provider. The Act states in section 37(2) concerning such a choice:
(2) If a rehabilitation authority makes a determination under subsection (1), the authority may:…
(b) make arrangements with an approved program provider for that provider to provide a rehabilitation program for the employee.
An ‘approved program provider’ is defined to mean ‘a person or body approved under section 34F or 34H as a rehabilitation program provider’. Part III of the Act, which includes sections 34F and 34H, provides formal requirements for accreditation by a rehabilitation provider, including that the provider must be approved by Comcare under Division 2 of the Act. Health Access Pty Ltd was an approved program provider.
Ms Clement provided no evidence at the hearing to dispute that Health Access Pty Ltd met the requirements in Part III of the Act. In other words she did not challenge the fact that Health Access Pty Ltd met the formal statutory criteria to be an ‘approved program provider’. Nor did she raise specific facts in her letter of complaint about Health Access Pty Ltd to indicate why she had lost confidence in the provider nor explain why the choice was having ‘an adverse effect’.
At the hearing, however, Ms Clement amplified her refusal to accept Health Access Pty Ltd as her rehabilitation provider in her complaint that Ms Gorgenyi’s counselling was contrary to medical advice in that she had provided a report on Ms Clement’s mental health, the truth of which Ms Clement denied, and that the meeting on 6 April 1993 was designed, she suggested, to persuade Dr Ostberg not to support Ms Clement. No evidence in support of either assertion was provided and in the absence of such evidence, the Tribunal is not satisfied of the truth of either assertion.
In response to a question from the Tribunal as to whether if an alternative rehabilitation provider was now to be provided by the ABS Ms Clement would be prepared to go back to employment with the ABS, Ms Clement’s response was equivocal. She said ‘I would do what is right I suppose. However, I can’t be responsible for the problems’. Ms Clement acknowledged that she had not worked since 1994, although she had been doing some study since.
In her statement of facts, issues and contentions and her submissions Ms Clement made a number of assertions concerning intentional breaches by ABS of the Crimes Act 1914 (Cth), conspiracies by some personnel involved in the matters the subject of her claims, and the making of false report by Health Access Pty Ltd and the ABS with a view to concealment of unlawful conduct. The Tribunal rejects these assertions as unsubstantiated.
The purpose of the rehabilitation provisions in Part III of the Act ‘is to restore an injured individual to their fullest physical, psychological, social and vocational capabilities’.[5] A rehabilitation program aims to achieve these objects. As Comcare’s Agency Advice No 9 states, the purpose of such a program is ‘to facilitate a quick and effective return to productive work’ and ‘to create an environment conducive to an amicable return to work’. At the same time, as Advice No 9 acknowledges, achievement of that goal requires that the employee has confidence in the provider and where that confidence is absent, the employee can request an alternative provider.
[5] Re Fox and Department of Defence [1995] AATA 387 at [22].
Nonetheless, that advice does not mean that there is any obligation on the rehabilitation authority to provide an alternative provider. [6] All the circumstances, and in particular the goals of producing an environment conducive to an amicable, quick and effective return to work, must be borne in mind. The Tribunal also accepts that the purpose of the rehabilitation provisions is prospective, not retrospective.[7]
[6] Comcare v Chang (1996) 24 AAR 120 at 123.
[7] Chang v Comcare (1997) (unreported, FCA 97/823, 25 June 1997) per O’Loughlin J, transcript 5-6.
The Tribunal considers there are practical barriers to the achievement of the goals of rehabilitation in relation to Ms Clement. Ms Clement is ambivalent as to whether she would be prepared to return to work. That is not surprising. Ms Clement has not participated in the workforce for nearly 20 years. The goal of a ‘quick and effective’ return to work can certainly not be realised in Ms Clement’s case since her injury occurred in 1991.
The Tribunal acknowledges that there were unacceptable delays by Comcare and the agency in responding to her request in 1993 for an alternative provider. However, she too contributed to that delay by not pursuing her claim for some seventeen years (between 1993 and 2010). Her motivation to participate in an effective rehabilitation program must be doubted in those circumstances. So it would not be reasonable to require ABS to choose a rehabilitation provider to assist her to return to employment which she is unlikely to accept.
Another practical barrier would be finding a suitable workplace for someone like Ms Clement, given her history of difficulties in her previous workplace. Her interactions with the ABS, other agencies and with medical experts over the long course of her various claims in this matter, justified though on occasions those interventions may have been, raise understandable doubts about the possibility of her achieving an amicable return to work.
In addition, her length of time away from a workplace means that Ms Clement would need to update her skills as a database administrator to a significant degree. The rapidity of change in technology, including the databases she would be required to use if she were to attempt to return to employment in her previous field, would entail a significant commitment on the part of Ms Clement and her rehabilitation provider to enable her to regain her competence in her chosen field. The alternative approach, which is that she retrain for an alternative position, given her length of time out of the workforce, is likely to take even longer to achieve and is not a viable option.
In those circumstances the Tribunal considers there is no utility in requiring ABS to take steps at this time to find an alternative rehabilitation provider who would be acceptable to Ms Clement and who would be able to achieve the goals of a rehabilitation program, namely, to enable Ms Clement to attain her ‘fullest physical, psychological, social and vocational capabilities’. The rehabilitation provider has a discretion as to whether to institute a rehabilitation program.[8] If the overall goals of that program are unlikely to be met, that discretion can be exercised unfavourably. In these circumstances, the Tribunal considers it would not be reasonable to support Ms Clement’s request for the provision of an alternative rehabilitation provider. This means that the decision under review is affirmed.
[8] Comcare v Chang (1996) 24 AAR 120 at 123.
Matter 2010/3449
On 9 February 1993, the ABS, the rehabilitation authority, implemented a rehabilitation plan for Ms Clement. Ms Clement was advised on 19 May 1993 that the plan had closed. Ms Clement sought review of the decision by the agency on 15 June 2010, as she says she had previously requested in April 1993. No decision was made on the matter at that time. A reviewable decision was made on 23 July 2010 affirming the initial decision. On 16 August 2010, Ms Clement sought further review by the Tribunal. Ms Clement claimed that the program remained in force as it had been closed prematurely and illegally.
Section 37(1) provides:
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.
An ‘injury’ is defined.[9] The definition provides:
(1) In this Act:
‘injury’ means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee's employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), that is an aggravation that arose out of, or in the course of, that employment.[10]
[9] Act section 4(1).
[10] Act section 5A(1).
The definition of injury indicates that for the purposes of the Act, including the provision of rehabilitation services under section 37(1) of the Act, the ‘injury’ must have arisen out of, or on the course of, the employee’s employment. The Tribunal notes that the previous decision by the Tribunal referred to earlier found that Ms Clement’s condition of reactive depression is not an injury since it did not arise out of or in the course of her employment.
A decision by this Tribunal in an earlier related matter is not binding on the Tribunal as later constituted, although the later Tribunal would only reconsider an earlier decision in limited circumstances. The principles to be applied were described in Rana v Military Rehabilitation and Compensation Commission, a decision of the Full Court of the Federal Court. The Court considered whether it was appropriate for the tribunal to adopt in later proceedings findings made the tribunal in earlier proceedings, and noted that ‘(t)here must be a limit to the ability of a disappointed party repeatedly to revisit findings once made’.[11] The Full Court continued:
But the obligation to ‘ensure that every party...is given a reasonable opportunity to present his or her case...’, may require that a party be given an opportunity to again re-agitate findings of fact with a view to persuading a subsequent Tribunal to reach a finding of fact contrary to one previously made. It may not be possible, and it would be certainly imprudent to attempt exhaustively to identify those circumstances where a party should be extended that opportunity. Subject to that necessary qualification, some of those circumstances may include the following: where a party was previously unrepresented, but is now represented and where there may now be a more thorough and focussed cross-examination on the evidence; and where a party wishes to adduce evidence which was not previously available. The circumstances may also include those where a subsequent Tribunal simply is of the view that it would not make the same findings of fact. Such a Tribunal may be of the view that the findings of fact previously made may not be wrong; it may simply be of the view that the ‘correct or preferable’ finding is one different from that previously made.[12]
[11] Rana v Military Rehabilitation and Compensation Commission [2011] FCAFC 80 at [27].
[12] Id at [28].
The circumstances in which a Tribunal may be inclined to reconsider a previous decision in the same matter are not exhaustive. Nonetheless, the Tribunal considers the list of factors in Rana to be a useful guide. It is noteworthy that Ms Clement was self-represented in both the previous and the current matter, so the factor of now being represented is not relevant. Ms Clement did not adduce any new evidence at the current hearing. The matters she raised in her statement of facts, issues and contentions and her submissions were thoroughly canvassed in the previous decision by the Tribunal. Nor does this Tribunal consider that any of the findings of fact made in the previous decision were wrong, or that the previous Tribunal decisions did not make the ‘correct or preferable’ decision.
In these circumstances, the current Tribunal sees no need to make further or different findings of fact, nor to reconsider the decision made by the previous Tribunal. The legality of that decision has been upheld by the Federal Court and the Full Court of the Federal Court, and the Courts’ decisions on the legal issues, to the extent that they are relevant to the matters before it, bind the Tribunal. This Tribunal has reconsidered the factual basis on which the previous Tribunal acted, and has found no need to reconsider any of those findings of fact. As a matter of comity, the Tribunal does not seek to reopen the matters decided in that case.
The consequence is that the finding that Ms Clement’s injury is not related to her employment by the ABS and that she has not suffered an ‘injury’ for the purposes of the Act stands. Accordingly she is not entitled to a rehabilitation program under the Act. Therefore Ms Clement has no right to seek the reinstatement of any RTWP. The decision under review relating to the closure of her earlier RTWP is affirmed.
I certify that the preceding 44 (forty -four) paragraphs are a true copy of the reasons for the decision herein of Professor RM Creyke, Senior Member ......................................[sgd]..................................
Associate
Dated 9 September 2013
Date of hearing 11 July 2013 Applicant Self-represented Counsel for the Respondent Mr Ben Dube Advocate for the Respondent Mr Andrew Dunlevey Solicitors for the Respondent Australian Government Solicitor
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