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
..................................[sgd]......................................
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

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.
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.
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.
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.
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.
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.
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.
The Tribunal had also, on 16 February 2016, made an…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2016] AATA 538
Decision Date: 27 July 2016

CaseChat Overview and Summary

This matter concerned an application by Mr Kulas (the Applicant) against Prosegur Australia Pty Ltd (the Respondent) before the Tribunal. The Applicant suffered a work-related injury in June 2011, involving a low back strain and disc protrusion, for which the Respondent accepted liability. The core of the dispute revolved around the Applicant's failure to undertake a mandated rehabilitation program, which the Respondent argued should result in the suspension of his compensation rights.

The Tribunal was required to determine whether the Applicant had refused or failed to undertake the rehabilitation program without reasonable excuse, as stipulated by section 37(7) of the relevant Act. This section provides that an employee's rights to compensation and to institute or continue proceedings are suspended if they refuse or fail to undertake a rehabilitation program without reasonable excuse. The Applicant had also raised allegations of bullying and harassment, which the Tribunal needed to consider in the context of his refusal to participate in the program.

The Tribunal found that the Applicant had indeed refused or failed to undertake the rehabilitation program, and that this program was provided in accordance with the Act. Applying an objective test, the Tribunal concluded that the Applicant had not demonstrated a reasonable excuse for his failure to participate. The Tribunal rejected the Applicant's claims of bullying and harassment, finding no evidence to support them. Furthermore, the Tribunal held that it was not its role to question the suitability of the rehabilitation program itself, but rather to assess whether the Applicant had a reasonable excuse for not undertaking it.

Consequently, the Tribunal affirmed the reviewable decision, finding that the exception provided for in section 37(7) of the Act was not satisfied. No orders were made in favour of the Applicant.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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 The Applicant was born on 21 October 1965 and is 50 years of age. 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. At the date of the injury, the Applicant was employed as an armoured vehicle operator in the security business conducted by the Respondent. 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. 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. 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. 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. 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. 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. 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. 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. 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.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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

Ratio Decidendi

Legal Principle Established

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

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

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