Kulas and Prosegur Australia Pty Ltd (Compensation)

[2016] AATA 538

Kulas and Prosegur Australia Pty Ltd (Compensation) [2016] AATA 538 (27 July 2016)

Division	GENERAL DIVISION
File Number(s)	2014/4634
Re	Krasandar Kulas
APPLICANT
And	Prosegur Australia Pty Ltd
RESPONDENT

DECISION

Tribunal	Dr Damien Cremean, Senior Member
Date	27 July 2016
Place	Melbourne

The reviewable decision is affirmed

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Dr Damien Cremean, Senior Member

COMPENSATION — initial back injury — rehabilitation program — refusal or failure to undertake rehabilitation program — whether reasonable excuse or not — decision affirmed

Legislation

Safety Rehabilitation and Compensation Act 1988 (Cth) sections 37(1), 37(7)

Cases

Pascoe v Australian Postal Corporation (2004) 77 ALD 464

REASONS FOR DECISION

Dr Damien Cremean, Senior Member

27 July 2016

Introduction

1. The Applicant seeks review of a decision made on 28 August 2014 (the reviewable decision). This decision was an affirmation of a determination dated 7 August 2014, determining that the Applicant’s rights to compensation under the Safety Rehabilitation and Compensation Act 1988 (Cth) (the Act) to initiate or continue proceedings under the Act were suspended.

2. The determination was affirmed on the ground that the Applicant did not have a reasonable excuse for failing to undertake a rehabilitation program. The rehabilitation program had been instituted by a determination made on 6 May 2014, which called upon the Applicant to undertake the program concerned under section 37(1) of the Act.

3. The matter was heard by the Tribunal from 7 March 2016 to 9 March 2016 and again on 12 May 2016. At the hearing the Applicant was self-represented. The Respondent was represented by Mr Paul Jones of Counsel, instructed by Moray & Agnew Lawyers. The Tribunal heard oral evidence from the Applicant, Mr Gavin Lynch, Ms Leila Georges, Dr Stuart Turnbull and Dr Michael Bloom.

4. Both parties have provided the Tribunal with written submissions. The written submissions were also addressed orally, following a request from the Respondent to be able to do this. The Tribunal allowed the request, and accordingly extended the same courtesy to the Applicant.

5. At a telephone directions hearing held on 4 March 2016, the Tribunal had ruled that the Applicant could not introduce late stage psychiatric or psychological evidence. Such evidence was sought to be introduced in disregard of directions clearly made. The Applicant had had plenty of time to introduce such evidence but had not sought to do so any earlier than shortly before the hearing. The Respondent objected to the introduction of such evidence.

6. In my view, introduction of such evidence at that late stage would have caused significant prejudice to the Respondent. Unless the case was adjourned at great cost, the Respondent would have had no opportunity to respond to the new evidence. I regarded both such situations as unfair.

7. I carefully considered what the Applicant said on his own behalf, in relation to this point. I saw no reason why he could not reasonably have acted earlier, in accordance with directions, unless possibly he was intending to ambush the Respondent with the material.

8. The Tribunal had also, on 16 February 2016, made an order regarding confidentiality, which restricted access to a video taken at the Respondent’s premises.

9. On a date shortly prior to the hearing the Applicant had forwarded to the Tribunal for its consideration or perusal an edition of the King James Bible with pages and verses tagged. This was not relevant to the application and was not taken into evidence. It will be returned to the Applicant.

   Background

10. The Applicant was born on 21 October 1965 and is 50 years of age.

11. On 22 June 2011, the Applicant suffered an injury at work with the Respondent in the nature of a low back strain and L5/S1 disc protrusion with left S1 never root compression, together with C6/7 stenosis secondary to pre-existing spondylitic changes. The Respondent accepted liability for the injury.

12. At the date of the injury, the Applicant was employed as an armoured vehicle operator in the security business conducted by the Respondent.

13. The Applicant agrees that he never returned to his normal armoured vehicle operator duties after his injury. Since February 2014, the Applicant has mainly performed an administrative/sedentary role in the Respondent’s control room.

14. From time to time Dr Turnbull, who is the Applicant’s treating general practitioner, has issued restrictive work certificates based on his reported symptoms. The Applicant says that there is evidence that he has a very serious injury.

15. It must be stated at the outset that the video does not support the Applicant’s contention in that regard. That is not to deny however that he did not suffer the injury on 22 June 2011. The video demonstrates, however, that the Applicant does not suffer symptoms of his injury such that they would restrict him from working.

16. The Applicant agrees that the determination of 6 May 2014 was made. The determination required the Applicant to undertake a rehabilitation program, the terms of which were set out in the determination. The final goal of the rehabilitation program is stated as: Mr Kulas to perform permanently modified suitable duties on pre injury hours with Prosegur.

17. In written submissions, the Applicant provides that he agrees that a determination was made, but asks on which opinion is [the determination] based? The meaning of this question or comment is unclear.

18. A review of the determination of 6 May 2014 was sought and carried out by Dr Mary Wyatt, an occupational physician, who provided a report dated 6 June 2014.

19. In her report. Dr Wyatt concluded that the duties set out in the rehabilitation plan were appropriate, and that the Applicant could work full hours. Dr Wyatt noted that it would be useful for the Applicant to be offered adjustment counselling and to be exercising.

20. The report specifically says that the physical duties … listed are appropriate and I can see no physical reason Mr Kulas should not be doing these duties full-time. It is correct to point out, as the Applicant does in his submissions, that Dr Wyatt notes that she was left with the impression that Mr Kulas is depressed.

21. A further review of the determination was undertaken on 20 June 2014 in light of Dr Wyatt’s comments. The Respondent says that this review was undertaken on its own motion, but the Applicant disagrees with this. A new determination was then made on 4 July 2014.

22. The determination of 4 July 2014 required the Applicant to attend adjustment counselling and to undertake an exercise program. The determination notes that it was undertaken on the basis that it was appropriate for the relevant delegate to consider whether the program could be improved through the inclusion of some adjustment counselling and an exercise program.

23. The rehabilitation program, under the new determination, required the Applicant to attend adjustment counselling and undertake an exercise program and modified duties for 39.49 hours per week. The Applicant agrees with this, but says the determination disregarded the medical certificates issued by Dr Turnbull.

24. The recommendation that the Applicant attend adjustment counselling and undertake an exercise program is in accordance with Dr Wyatt’s suggestion in her report. The Applicant disputes this. He says that [the counselling and exercise program] was generalised, and not in fact what was recommended by Dr Wyatt. This does not seem to be correct in light of Dr Wyatt’s report, but it is true that Dr Wyatt did not go into great detail on the point.  

25. The determination was also said by the Applicant to be lacking sincerity. Again, I am unclear what he means by this.  It is something which seems to be unrelated to the facts.

26. The Respondent notes that the Applicant did not seek to review that latest determination. The Applicant agrees with this.

27. The Respondent says that after the determination of 4 July 2014, the Applicant continued to attend work for only four hours a day and did not undertake any counselling or an exercise program. The Applicant disagrees with this, on the basis that there is no date specified. I cannot answer with certainty what period I worked [sic] 8 hour or 4 hours. The meaning of this is unclear as well.

28. The Applicant agrees that on 18 July 2014, Ms L Georges of the Respondent wrote to him noting he had failed to undertake the rehabilitation program and in particular [had] failed to attend work for the required 7.9 hours a day on any day.

29. The Respondent claims that the letter sought [the Applicant’s] explanation or reasons for not doing so. The Applicant disagrees with this on the basis that he provided doctors certificates and [was] physically and mentally not able to cope with 7.9 hours. This only vaguely seems to address the point of the initial letter.

30. On 1 August 2014, the Applicant agrees he responded to such letter. In his response, he states I took your proposed return to work plan and showed it to Dr Turnball [sic] and he told me he wasn’t consulted and he would not sign it. He then added that [t]he proposed return to work plan is not a good plan and I will not sign it.

31. Following the Applicant’s response, the determination of 7 August 2014 was made suspending the Applicant’s rights to compensation under the Act on the basis that he had not provided a reasonable excuse for [his] failure to undertake the rehabilitation program.

32. The Applicant does not agree with this determination as he says it is factually incorrect. I take him to mean by this, to use his words, that he was physically and psychologically unable to do the rehabilitation program.  

33. The Applicant agrees that on 18 August 2014 he sent a letter to the Respondent which was accepted as a request for a reconsideration of the determination of 7 August 2014.

34. On 28 August 2014, the Respondent reviewed and affirmed the determination of 7 August 2014. The Respondent noted that the Applicant in effect repeated that he was not able to undertake the rehabilitation program. The Respondent concluded that the request for reconsideration provides no explanation or excuse, and in particular does not provide any reasonable excuse for [the Applicant’s] failure to undertake the rehabilitation program.

    35.The Applicant now seeks review of the determination of 28 August 2014.

    Contentions

35. The Applicant says that based on the probabilities he should succeed. He asks for the reviewable decision to be set aside so that he will be able to return to work. He also asks for his medical expenses to be paid and for an underpayment of $60,000 to be paid to him. He further asks for the Tribunal to issue a stern warning regarding harassment and bullying in his case, so that he can become again a good and productive employee.

36. The Respondent seeks that the reviewable decision be affirmed.

    Consideration

37. The relevant provision in this matter is section 37(7) of the Act, which states that:

    Where an employee refuses or fails, without reasonable excuse, to undertake a rehabilitation program provided for the employee… the employee’s rights to compensation … and to institute or continue any proceedings under [the Act] in relation to compensation, are suspended until the employee begins to undertake the program.

38. I have no doubt the Applicant has refused or failed to undertake the rehabilitation program set out for him, and that such program was provided under and in accordance with the Act. The issue for me is to determine, therefore, is whether on the evidence the Applicant has refused or failed to undertake the rehabilitation program without reasonable excuse.

    Bullying and Harassment

39. The Respondent contended that there is simply no basis for any suggestion of bullying or harassment in this matter. The Applicant has raised this as something I should issue a stern warning about. I should indicate in that regard that I accept what was said by the Respondent as I see nothing of the sort in any of the evidence.  

40. In the course of the hearing I did learn of some heated exchanges between the parties, on one occasion relating to a religious or similar issue. I am unable to see how these exchanges constituted bullying or harassment. I am otherwise unclear about the basis for the Applicant’s allegations of bullying or harassment or, if there is some basis, how it affects his return to work issue.

    Nature of the Return to Work Program

41. I accept the analysis of the Respondent that it is not a concern of mine on this occasion to determine whether the program offered to the Applicant was suitable or not. The reference is to the decision in Pascoe v Australian Postal Corporation (2004) 77 ALD 464 at 467, where the Full Court of the Federal Court said it is no part of the s 37 (7) exercise to gainsay the program made by an approved program provider following a s 37(1) determination.

42. I accept the program on this occasion as a fact. It is not in point, therefore, for the Applicant to argue that the program is factually incorrect, if I understand correctly what he means by that.

43. Directing my attention to extracts from medical reports is only useful if they bear upon the question of whether the Applicant has a reasonable excuse for refusing or failing to undertake the program or not. The Applicant in his submissions does not seem to fully appreciate this point.

44. In a way, I expect this is what the Applicant is asking me to do. I expect he is asking me to consider those extracts and form a view on the basis of them about whether he has a reasonable excuse or not. This is not, however, made clear in submissions. If this is what he wants, it is not within the power of the Tribunal to do so.

    Whether the Applicant had a Reasonable Excuse

45. A belief of a worker that a reasonable excuse exists is not sufficient. The question of whether a reasonable excuse exists or not imposes an objective test. It is not simply a matter of determining only what the worker may have subjectively believed.

46. I am not satisfied on the evidence that the Applicant has an excuse which is reasonable for refusing or failing to undertake the program provided for him. The submissions of the Respondent are convincing in this regard. I am satisfied I should accept them as the basis of my decision.

47. The Applicant was an unimpressive witness and an unskilful advocate in his own cause. I have significant reservations about relying on his evidence particularly as regards the state of his health. It is not in point for the Applicant to argue that the proposed return to work plan [was] not a good plan. He argues that the plan wasn’t working for [him] even on many occasions, he worked 7.9 hours but was not able to continue with 7.9 hours due to the pain, numbness, depression and also experiencing suicidal thoughts especially at late night.  As noted above I consider that he is, by this, seeking to challenge the program itself.

48. Further I cannot see how the Applicant can maintain the program was not a good plan when the video in the case shows him performing duties already set out in the program. The video shows him sitting at a desk in the control room front counter area. In the footage, he is apparently enjoying himself but clearly not exerting himself. It is pointed out to me by the Respondent that the Applicant agreed in evidence that this job was an easy job.

49. The Applicant’s response to this is that the footage is a diversion as it shows what [the] Respondent chose for us to see, not the truth of the matter. This seems quite mistaken. I have no evidence that the Respondent selected only footage designed to show the Applicant in a poor light by showing him satisfactorily carrying out duties and apparently enjoying doing so.

50. The Applicant, I note, does not respond to it being said by the Respondent that his evidence was that control room work was an easy job. He does not take issue with this. In my view the footage is in no way a diversion, nor unfairly selective. Moreover I consider that the footage is decisive in showing that the Applicant’s evidence was correct at least in this respect: it was an easy job.

51. There is nothing whatever stressful about anything the Applicant is shown doing in the footage. He can be seen, as is pointed out, in friendly conversation with a supervisor, whom he described however as hostile. He is well catered for in the footage.  He is doing little more in the footage than watching television.

52. Admittedly, the work the Applicant is doing in the footage is not the same work he was doing as an armoured vehicle operator. This seems to be an issue of concern to him. The Applicant says that work as an armoured vehicle operator was more physically demanding and perhaps more suitable. Certainly, it would seem that armoured vehicle operator work is more physically demanding.

53. The Applicant says that as an armoured vehicle operator he did not have to deal with either Ms Georges or Mr Lynch, both employees of the Respondent. The bullying and harassment started, he said, when he was moved into the control room which is the subject of the video footage. This, in my view, simply has no basis in any of the evidence before the Tribunal.

    Medical Evidence

54. In addition to the medical report from Dr Wyatt referenced above, the Tribunal received copies of a number of medical reports. The most relevant of these, on which the written submissions of the parties were based, were from Dr Michael Bloom, an occupational physician, dated 17 February 2015 and a medical report from Mr Rondhir (Ron) Jithoo, a brain and spinal neurosurgeon, dated 27 April 2016. The Tribunal was also provided with the clinical notes of Dr Turnbull. Dr Turnbull also gave oral evidence by telephone during the hearing.

55. The Respondent submits that the assignment of control room work to the Applicant was supported not only by Dr Wyatt, but also by Dr Bloom and Mr Jithoo. This is consistent with their reports. Dr Bloom was of the opinion that the Applicant was able to undertake the duties provided in the return to work program. Mr Jithoo was also of the opinion that the return to work program, including restrictions and upscaling on duties, was appropriate.

56. Significantly, but confusingly, the Applicant in his written submissions appears to agree with the view of Dr Bloom and Mr Jithoo. This again contradicts the position that the Applicant has established in his application to the Tribunal, but this does not seem to be apparent to him.

57. Despite agreeing with Dr Bloom and Mr Jithoo, the Applicant adds that clinical examination was not performed under consultation today at 27^th of April 2015. I am unable to say what this comment is referring to. It appears to be a reply to the Respondent’s statement in their written submissions that Dr Wyatt, Mr Bloom and the Applicant all agreed that the control room job was easier than the van. I am unclear otherwise about what it means.

58. The Respondent submits that the Applicant had no intention whatsoever of complying with the rehabilitation program. The Applicant says in response that he had intention to work 7.9 hours but the harder he tried the worse he felt physically and psychologically. The Applicant says that his inability to comply with the program was supported by Dr Turnbull.

59. At the same time, however, the Applicant agrees with the Respondent that each of the medical specialists in the case thought it would be beneficial for him to return to work on the program. The Applicant makes no significant attempt to deal with this contradiction. Again, the contradiction does not seem to be apparent to the Applicant.

    The Evidence of Dr Turnbull

60. Turning to Dr Turnbull, in my view I should not rely upon his evidence in a way which supports the Applicant’s position. It is true that Dr Turnbull did not sign the return to work plan. Indeed, he provided no comments at all despite having been sent the program. His evidence was that I don’t sign if the worker says I can’t do that.

1. To a degree this is understandable. Pain is an issue of individual concern and if someone says they are in pain it is, or may be hard to say, whether or not they are lying. Dr Turnbull said in relation to his patients generally that [he] can’t say they are not in pain. The Applicant in his submissions agrees that this was Dr Turnbull’s evidence.

2. Medical practitioners are in a difficult position in this area, but I consider the attitude of Dr Turnbull shows undue resignation. There is an expectation that medical practitioners will exercise some independent judgement in matters of this kind. To fail to do so jeopardises aspects of the scheme established by the Act. Further, it may lead to a worker’s underlying condition remaining undiagnosed.

3. I must indicate that I am left in great doubt about the extent of Dr Turnbull’s exercise of judgment in this matter. In particular, I doubt whether his exercise of judgment was an exercise of independent judgment.

4. I cannot agree with the Applicant, however, that Dr Turnbull was pressured by the Respondent for the outcomes that they desire. This simply seems to be quite unsustainable on the evidence.

5. My view is that the Respondent was concerned to ensure the Applicant was fit to return to work. This is indicated, in particular, by the reconsideration of the determination of 6 May 2014 in light of comments by Dr Wyatt.

6. The Respondent contends that Dr Turnbull clearly felt pressure from his patient, the Applicant. The Applicant disagrees with this and says Dr Turnbull was not pressured by him.

7. There are odd inclusions in the medical notes of Dr Turnbull indicating that the Applicant has or has had an agenda of some kind in mind. It is recorded by Dr Turnbull, for example, that the Applicant aims to teach the government a lesson. How the government became involved in this is unclear to me.

8. A comment of this kind I consider could, or should, have alerted Dr Turnbull to something more which was going on from the Applicant’s perspective. The Applicant concedes his comment about government was very stupid and …regrets making a comment like that.  I am still, however, unclear about why the Applicant said it or what he meant by it. Having been said, it seems pointless regretting it. Moreover, it cannot now be withdrawn.

9. I consider a more important a conversation took place between Dr Turnbull and Mr Lynch on 20 May 2014. The Applicant says he cannot comment on this because he was not present.

10. In this conversation, Dr Turnbull said to Mr Lynch that he agreed he wrote a certificate for the Applicant for total incapacity. He agrees he then said: I was wondering how long it would take for you to call me.

11. This comment, I consider, undermines the independence of judgment exercised by Dr Turnbull. In effect, it undermines Dr Turnbull as a certifier and as the person on whom the Applicant relies to justify his failure or refusal to return to work on the stated terms and conditions.

12. Significantly I consider, in that very same conversation with Mr Lynch, Dr Turnbull says the Applicant had come to see him saying he was in pain. Dr Turnbull then says to Mr Lynch that I can’t actually say to him I think you’re a liar mate. I need to take his word for it. This is a most suspicious remark, and one that goes to whether the Dr Turnbull believes that the Applicant has been telling him the truth. I should doubt it would be said if Dr Turnbull believed that the Applicant was fully telling him the truth in the matter.

13. I should also note Dr Turnbull’s concession, referred to by Mr Lynch, that apart from stating that the Applicant was in pain, there was no other medical reason to explain the Applicant’s inability to perform pre-injury hours of work. Dr Turnbull indicates that No, no [the Applicant’s] problem is pain.

14. There were factors, in my view, to suggest that Dr Turnbull should have been more alert and more assertive in his examination of the Applicant than he was. It should not have been relevant, if it was, whether such enquiry would mean losing a patient to another clinic. In my view, there is much to be criticised in Dr Turnbull’s approach to the situation.

15. The critical point which is then made on behalf of the Respondent is that it is the Applicant who has told Dr Turnbull what he can and cannot do. Dr Turnbull does not question this self-reporting by the Applicant. This is distinct from Dr Turnbull determining, in the exercise of professional skill and care, what in his view the Applicant can and cannot do. This, in reality, is an inversion of this aspect of the scheme established by the Act.

16. The Applicant refers to feeling pressure from Mr Lynch and Ms Georges and experiencing suicidal thoughts, which he did not tell Dr Turnbull about for fear that [Dr Turnbull’s] would be cancelled. This does not seem to make any sense. I am unable to guess the Applicant’s meaning, but it may have something to do with Dr Turnbull’s licence to practice medicine.

17. The following comment of the Applicant also does not make sense:

    The animosity and bias showed [sic] towards me, made me resist to share anything with them. I believe through my reading of Holy Scripture that we have to be strong and stand for a while and the evil thoughts would flee.

    Conclusions as to Evidence

18. As a result, my misgivings about Dr Turnbull’s evidence are such that I decline to rely upon his evidence as supportive of the Applicant’s refusal or failure to undertake the recommended program of work.

19. The position sought to be advanced by the Applicant is, in my view, untenable. It cannot be supported, particularly if I take into account the other medical evidence in the case. This is not even to mention the video footage in which the Applicant’s capabilities are plain for all to see. I have nothing further of a medical nature supporting a view that the Applicant had a reasonable excuse for his refusal or failure to undertake the program in question.

20. I also reject the Applicant’s claim that he reported his condition correctly on each occasion to Dr Turnbull. This claim, in my view, should be seen in the same light as the claim of bullying and harassment which he makes. In my view there is no substance in either claim, considering all the evidence.

21. Why the Applicant has refused or failed to undertake the program is unclear. It is possible that the Respondent is correct in saying that somehow, or for some reason, the Applicant is locked into a belief that he should not work in the control room, despite the Applicant acknowledging that it is an easy job. This could be because the Applicant earns less in the control room than he did as an armoured vehicle operator and has less freedom.

22. I am unable to comment profitably any further on this matter. I must make it clear though that, on the evidence available to me, I am not satisfied of anything of a medical or other nature which reasonably supports the Applicant’s refusal or failure to undertake the program. In that regard, I note I was shown photographs of the Applicant’s hands which appear to be swollen but I am not in a position to say why this is so. His hands do not presently seem to be swollen.

23. I acknowledge he was or may have been taken by ambulance to hospital at one point with chest pains or shortness of breath, or a suspected heart condition, but there is nothing linking this to his refusal or failure to undertake the return to work program.

24. I am not satisfied on the evidence that the Applicant has a reasonable excuse for having refused or failed to undertake the return to work program. The exception provided for in section 37(7) of the Act is thus not satisfied.

    Conclusion

25. The decision under review therefore is affirmed.  No orders sought by the Applicant are made in his favour.

87.     I certify that the preceding 86 (eighty-six) paragraphs are a true copy of the reasons for the decision herein of Dr Damien Cremean, Senior Member

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Associate

Dated   27 July 2016

Date of hearing	7 March 2016 – 9 March 2016, 12 May 2016
Applicant	In Person
Counsel for the Respondent	Mr P Jones
Solicitors for the Respondent	Moray & Agnew Lawyers