Mark Houssenloge and Australian Postal Corporation
[2014] AATA 154
[2014] AATA 154
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/4190
Re
Mark Houssenloge
APPLICANT
And
Australian Postal Corporation
RESPONDENT
DECISION
Tribunal Senior Member A K Britton
Date 20 March 2014 Place Sydney The decision under review is affirmed.
........................................................................
Senior Member A K Britton
CATCHWORDS
WORKERS’ COMPENSATION — Liability accepted for lower back injury — Rehabilitation program — Failure to recommence work — Failure to follow program — Compensation suspended — Whether there was a reasonable excuse — Fitness to return to work – Whether reasonable belief in views expressed by medical experts
LEGISLATION
Acts Interpretation Act 1901 (Cth) – s 15AA
Safety, Rehabilitation and Compensation Act 1988 (Cth) - ss 37(7);
CASES
Australian Postal Corporation v Forgie [2003] FCAFC 223
Re Ismailjee and Australian Postal Corporation [1995] AATA 555
NSW Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation [1956] HCA 80
Pascoe v Australian Postal Corporation [2004] FCAFC 4
SECONDARY MATERIALS
Collins Australian Dictionary, 6th Ed, Harper Collins Australia
The Macquarie Dictionary 2013, 6th Ed., Macquarie University, Sydney, NSW
Oxford English Dictionary Online 2nd Ed.
REASONS FOR DECISION
Senior Member A K Britton
20 March 2014
Where a person refuses or fails, without reasonable excuse, to undertake a rehabilitation program, their right to compensation under the Act is suspended (s 37(7) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act)). An employee of Australian Postal Corporation (Australia Post), Mr Mark Houssenloge, seeks review by the Administrative Appeals Tribunal of the decision made by Australia Post to suspend his right to compensation.
In December 2011 Mr Houssenloge sustained an injury to his back while at work. Australia Post accepted liability for that injury and subsequently directed Mr Houssenloge to participate in a staged return to work plan, which the parties agree constitutes a rehabilitation plan for the purpose of s 37(7) of the Act.
Australia Post asserts that Mr Houssenloge failed to undertake the subject rehabilitation program. Mr Houssenloge disagrees. In the alternative he argues that he had a reasonable excuse for not undertaking the program, namely (i) that he was certified unfit to work by his GP, and (ii) that in previous attempts to return to work he had aggravated his back injury. Australia Post asserts that Mr Houssenloge’s claim of aggravating his back condition on returning to work is inconsistent with the weight of medical opinion and the activities he undertook outside work.
Two key issues fall to be determined:
(a)Did Mr Houssenloge fail to undertake the rehabilitation program, the subject of determination made by Australia Post on 27 June 2012?
(b)If so, did he have a reasonable excuse for failing to undertake that program?
BACKGROUND
Mr Houssenloge commenced work with Australia Post as a transport officer in February 2010. On 14 December 2011 he completed an incident form stating that on 6 December 2011, while loading bags of mail from a conveyor belt onto a truck, the weight of one bag, which he later found to be 35 kilograms, took him by surprise and “dragged him to the floor of the truck”.
GP Dr Mark Lim certified Mr Houssenloge unfit for work from 6 December 2011 to 4 January 2012. On 4 January 2012 Dr Lim certified Mr Houssenloge fit for suitable duties (light duties that did not involve repetitive lifting, lifting more than five kilograms, bending, stooping or twisting of the back) to 18 January 2011.
Mr Houssenloge returned to work on 11 January 2012 and was given filing duties. He left after about four hours complaining of severe lower back pain. Mr Houssenloge consulted Dr Lim that afternoon and was certified unfit for work to 25 January 2012. Dr Lim’s clinical notes record “[Mr Houssenloge] was doing filing and shredding, [pain] gradually worsening over the day, and after four hours was intolerable and left … feels work place was unsympathetic to his situation”. Mr Houssenloge consulted Dr Lim again on 18 January 2012 and was certified unfit for work to 8 February 2012.
In early February 2012 Australia Post referred Mr Houssenloge for assessment to orthopaedic surgeon Dr Frank Machart. In a report dated 11 February 2012 Dr Machart diagnosed Mr Houssenloge as suffering from “lumbar sprain musculoligamentous sprain on the background of multilevel degenerative change”. In his opinion that condition was probably attributable to the incident on 6 December 2011.
Dr Machart thought it unlikely that Mr Houssenloge had been totally unfit for work since 6 December 2011 given Australia Post was able to offer “seated duties”. In his opinion Mr Houssenloge was not totally disabled and could work a couple of hours a day in a sedentary capacity.
In February 2012, on the basis of Dr Machart’s opinion, Australia Post accepted liability for the injury described as being “lumbar sprain musculoligamentous sprain on the background of multilevel degenerative change”.
Rehabilitation and upgrade program
In March 2012 after conducting a number of rehabilitation and workplace assessments, Australia Post officers formulated a “rehabilitation and upgrade program”. That plan provided for Mr Houssenloge’s gradual return to work over a three-month period with a staggered increase in work hours and corresponding decrease in the restrictions imposed. In its first four months, Australia Post made a number of amendments to the program.
First Return to Work plan
On 23 March 2012 Australia Post issued a rehabilitation and upgrade program which required Mr Houssenloge to return to work on 29 March 2012 (the 1st RTW plan). Under that plan for a period of two weeks Mr Houssenloge was required to:
(a)work five days per week, two hours per day
(b)perform sedentary duties that did not require repetitive lifting or lifting more than two kilograms; bending, stooping or twisting of the back and allowed for “intermittent mobilisation” for five minutes every hour.
On 12 March 2012 Dr Lim certified Mr Houssenloge fit to work subject to the above conditions.
Mr Houssenloge did not report to work on 29 March 2012. He advised his manager that he was unable to drive to work on account of his back. At that time Mr Houssenloge’s place of work was the Sydney Transport Facility located in Clyde, a distance of about 12 kilometres from his home.
On 4 April 2012 Dr Lim certified Mr Houssenloge fit for suitable duties subject to the additional restriction of a ten minute driving limit.
Australia Post subsequently made arrangements for Mr Houssenloge to work at its North Ryde delivery centre — a distance of about 7.5 kilometres from his home. (Mr Houssenloge testified that it could be a 45 minute drive in traffic). On 10 April 2012 Mr Houssenloge attended an orientation and workplace assessment at North Ryde. He worked for two hours on 11 and 12 April, respectively. On 13 April Mr Houssenloge reported to Australia Post that he was unable to attend work on account of a “flare up of back pain”.
On 16 April 2012 Mr Houssenloge consulted Dr Lim. Dr Lim’s notes of that consultation record:
Has good days and bad days
Work had found him a position in [N]orth Ryde (which is under 10 mins in school holidays ride to work)
Managed to go to work for most of last week (Tues, wed, thurs), but by end of Thursday, pain in back worsened, rested on Friday – did not go to work that day
On 16 April 2012 Dr Lim certified Mr Houssenloge unfit for work from 13 April to 17 April and fit for suitable duties from 18 April to 30 April 2012. Two days later Dr Lim certified Mr Houssenloge unfit to work from 18 to 20 April and fit for suitable duties from 21 to 25 April 2012.
Second Return to Work plan
Following a further workplace assessment Australia Post issued a revised plan (the 2nd RTW plan), which required Mr Houssenloge to commence work the following day. That plan ran for five days and, apart from the additional restriction of a 10 minute driving limit, was identical to the 1st RTW plan.
According to Australia Post’s records, Mr Houssenloge did not attend for work during the period covered by the 2nd RTW plan (21 to 25 April 2012). On 18 April Dr Lim certified Mr Houssenloge as totally unfit for work to 20 April but fit for suitable duties from 21 April. Five days later Dr Lim certified Mr Houssenloge totally unfit for work from 18 April to 25 April 2012.
Third Return to Work plan
On 4 May 2012 Australia Post issued a further return to work plan. The hours of work and restrictions under that plan were identical to those contained in the 2nd RTW plan.
It is not entirely clear from the evidence whether Mr Houssenloge worked during the period covered by the third plan, 4 May to 14 May 2012. In cross-examination Mr Houssenloge agreed he probably worked on 4, 5 and 6 May however it was clear from his testimony that he had no independent recollection of the days he had worked. While a file note made by an Australia Post officer suggests he may have been at work on 4 May 2012, Australia Post’s attendance records state that he was on sick leave for the whole of the period covered by the 3rd RTW plan.
On 10 May 2012 Mr Houssenloge reported to Australia Post that he had slipped the day before, aggravating his back. On 9 May 2012 Dr Lim certified Mr Houssenloge unfit for work from that day to 16 May 2012. On the basis of that certificate Australia Post revoked the 3rd RTW plan.
Fourth Return to Work plan
On 15 June 2012 Australia Post issued a further RTW plan requiring Mr Houssenloge to return to work on 20 June 2012. Apparently on the basis of the opinion of rheumatologist, Associate Professor Neil McGill, Australia Post decided to direct Mr Houssenloge to move to Stage 4 of the Plan, which required him to report to work at the Sydney Transport Facility (adjacent to the Sydney Gateway Facility where he had been working up to March 2012) and work full hours under conditions less restrictive than those contained in previous return to work plans. The Stage 4 restrictions included: not lifting (unassisted) weights in excess of 10 kilograms or “full large letter trays”; not driving more than four hours per day.
Mr Houssenloge did not attend work on 20 June 2012. On 22 June, on being contacted by Australia Post, he advised that he had not received the letter notifying him of the 4th RTW plan.
The following Monday, 25 June 2012, Mr Houssenloge attended the Sydney Gateway Facility for a full day (7.2 hours). On that day he participated in a training and induction session and performed filing duties. The available material does not disclose the proportion of the day spent on each activity. A file note made by an Australia Post rehabilitation provider, states that Mr Houssenloge’s filing duties consisted of putting two sheets of paper into files. The following day Mr Houssenloge told his manager that he was unable to attend work because of “extreme back soreness” as a result of the tasks he had been allocated the day before. Mr Houssenloge attended work for about three and half hours on 27 June 2012. It is unknown what duties he performed on that day.
Fifth Return to Work plan
On 27 June 2012 Australia Post revoked the 4th RTW and issued a revised plan. Under that plan Mr Houssenloge was to return to work on 28 June 2012 commencing at Stage 1 (two hours per day, five days per week with restricted duties as per the 2nd RTW plan), graduating over a four-week period to Stage 4 (full hours with restrictions as per paragraph [24] above). Apparently Australia Post decided, notwithstanding Associate Professor McGill’s opinion, that Mr Houssenloge was capable of undertaking Stage 4 duties that it was preferable that he graduate to Stage 4 over a four week period.
Mr Houssenloge did not attend for work on 28 June 2012. In a letter of the same date Australia Post requested a written explanation “for not undertaking the requirements of your rehabilitation program”.
Mr Houssenloge attended work for four hours on 2 and 3 July 2012 commencing Stage 2 of the plan. On 4 July he rang his manager and advised he would not be coming in because he had been “up all night with a sore neck”. The following day he consulted Dr Liang, a GP working in the same practice as Dr Lim, who certified him unfit for work from 4 to 9 July 2012. Dr Lim saw Mr Houssenloge on 9 July and certified him unfit for work from 9 to 15 July. Dr Lim continued to certify Mr Houssenloge unfit for work at regular intervals until October 2012. Mr Houssenloge’s last day at work was 3 July 2012.
Suspension of Mr Houssenloge’s entitlement to compensation
On 3 July 2012, in answer to Australia Post’s request for an explanation for not undertaking “the requirements of [his] rehabilitation program”, Mr Houssenloge wrote:
I have attempted twice now to return to work but have found that this has aggravated my injury resulting in me having more time off.
Attached to that letter was the medical certificate issued by Dr Liang issued on 5 July 2012.
On 26 July 2012 Mr Houssenloge was advised that his entitlement to compensation was suspended and would remain so until he undertook the 5th RTW plan. The stated reason for that decision was Mr Houssenloge’s failure to participate in that plan.
Mr Houssenloge’s account of post-injury symptoms
According to Mr Houssenloge, before the injury he had been an active sportsperson and had no back problems. In a statement dated 1 November 2012, Mr Houssenloge claimed that since the injury he has been in constant pain and was unable to participate in any sporting activities, do any housework, or pick up his infant grandchildren. He also claimed that since the injury his family has stopped going on outings as driving exacerbates his back.
Mr Houssenloge stated that at all times he has fully cooperated with Australia Post’s rehabilitation plan and was committed to returning to work. In his opinion, based on the radiological evidence and his own experience, he had probably not been fit to return to work at any time since the injury. He claimed his main problem had been the travel involved and the number of days he was required to work. Mr Houssenloge testified that each time he attempted to return to work he could not cope because of the pain he experienced and the pain relief medication he was taking.
Since injuring his back in December 2011 Mr Houssenloge has continued in his role as principal operator of a barbecue (BBQ) run by his son’s Little Athletics club. According to Mr Houssenloge the revenue generated by the BBQ is the club’s only source of funds. Mr Houssenloge spends about three hours each Saturday during the athletic season, September through to March, operating the club BBQ. In that role Mr Houssenloge was responsible for setting-up and preparing and serving food for the three hours the BBQ was in operation. From time to time in that role Mr Houssenloge:
·lifts one of end of the BBQ and wheels it from the storage area to the serving area, a distance of about 10 metres
·carries a gas bottle from the storage area to the serving area and connects it to the BBQ. The weight of the bottle varies according to the amount of gas it contains.
In that role Mr Houssenloge is required to use tongs, scrapers and other BBQ implements; twist to both sides to grab objects from either side of the BBQ; lift and place small boxes of produce, which include trays of meat, around the BBQ area; bend at the waist to clean the legs of the BBQ and pick up items from the ground. While undertaking those tasks Mr Houssenloge is required to stand. On his account he leaves the BBQ on occasion to smoke a cigarette.
Mr Houssenloge claimed that after working on the BBQ he is in pain and “pays for it” the following week.
Mr Houssenloge made no mention of his role as operator of the club BBQ in either of the statements prepared for these proceedings. Nor is it referred to in any of the medical reports prepared for these proceedings or Dr Lim’s clinical notes. Australia Post tendered in these proceedings a surveillance video containing footage of Mr Houssenloge operating the BBQ.
Medical opinion on Mr Houssenloge’s fitness for work
Since injuring his back in late 2011 Mr Houssenloge’s fitness for work has been assessed by orthopaedic surgeon, Dr Frank Machart, rheumatologist, Associate Professor Ian McGill and physician, Dr Ian Collins. Each prepared reports tendered in these proceedings. Dr Collins and Associate Professor McGill also gave oral evidence concurrently.
Opinion of Dr Machart
As noted Dr Machart was of the opinion that while Mr Houssenloge was not fit for his pre-injury duties, by mid-February 2012 he was fit to work five days a week, two hours per day in a sedentary capacity. In a report of 11 February 2012 Dr Machart recorded a history of on-going pain that had not been relieved by treatment, medication, or physiotherapy. Dr Machart wrote that Mr Houssenloge reported constant lower back pain and pain radiating into his right hip that “prevented him sleeping, going out, sitting or driving. He was allegedly unable to do anything physical”.
Dr Machart also recorded that on examination Mr Houssenloge walked slowly, limped heavily and was slow getting in and out of his chair. He wrote that Mr Houssenloge had voluntarily exaggerated his symptoms to a degree and there was evidence of symptoms inconsistent with the claimed condition.
In Dr Machart’s opinion the failure to respond to treatment is not consistent with the absence of radiculopathy. He wrote that Mr Houssenloge’s report that the pain had not eased, was “outside of expected prognostic parameters”.
At the request of Australia Post, Dr Machart prepared a supplementary report on 1 April 2012 in which he confirmed that Mr Houssenloge was fit to perform modified duties as set out in his original report. As to whether Mr Houssenloge was prevented from sitting or driving, Dr Machart wrote that there is no objective way to determine sitting or driving tolerances and he would not encourage Mr Houssenloge to drive.
Opinion of Associate Professor McGill
In May 2012 Australia Post referred Mr Houssenloge to Associate Professor McGill for assessment. In the Associate Professor’s opinion Mr Houssenloge’s reported level of difficulty was greater than would be expected by the objective clinical and radiological findings. He concluded in the absence of symptoms or signs of radiculopathy, it would be expected that Mr Houssenloge’s reported back problems would have settled within three months.
On testing, Associate Professor McGill found inconsistencies in the range of Mr Houssenloge’s back movements. He thought it relevant that during formal assessment, Mr Houssenloge was only able to touch his knees, but while undressing was observed to be able to untie his shoelaces while keeping both legs straight. In his opinion while the two actions were not directly comparable, there was nonetheless a discrepancy.
In Associate Professor McGill’s opinion, while Mr Houssenloge was fit to perform Stage 4 of the rehabilitation program, it was advisable that he graduate to that stage over a four-week period.
In a supplementary report dated 21 July 2012, prepared in response to Australia Post’s request for comment on the MRI taken on 10 July 2012, Associate Professor McGill stated that the MRI confirmed the substantial degenerative change in Mr Houssenloge’s lower back that had been revealed by the CT scan taken five months earlier. He confirmed that Mr Houssenloge was fit to move to Stage 4 of the Plan.
Opinion of Dr Collins
At the request of his solicitors, Mr Houssenloge was assessed by Dr Collins. In a report dated 14 August 2012, Dr Collins recorded that Mr Houssenloge was “getting a lot of pain in his lower back” and since the injury had been treated with physiotherapy which he found to be unhelpful. On testing, Dr Collins found Mr Houssenloge’s movements on forward flexion, backward extension and lateral bending to be “considerably reduced”.
Dr Collins wrote that Mr Houssenloge was unfit for manual work. In oral evidence he clarified that by manual work he meant the type of work Mr Houssenloge had been performing prior to the injury (truck driving and loading and unloading bags of mail) and anything that involved extensive bending or lifting. Dr Collins thought that Mr Houssenloge was capable of sorting mail at waist height providing he did not lift more than two kilograms, work more than four hours per day and was able to take rest periods and sit down if he became tired. He was of the opinion that Mr Houssenloge would have no difficulty performing the type of tasks described in Stages 1 and 2 of the plan: letter class and oversized article (LCOA) sorting — removing letters and oversized articles from a conveyor belt; culling — taking letters from a conveyor belt and sweeping them into one of three chutes; face up — turning letters on a conveyor belt address face up and placing them into trays. All tasks were performed at waist height.
Significance of the disc protrusion and annular tear
Associate Professor McGill and Dr Collins disagreed about the significance of the extruded disc fragment touching on the S1/2 nerve root and the small annular tear revealed by the MRI of Mr Houssenloge’s lumbar spine. Dr Collins considered that pathology to be significant and warranted consultation with a surgeon about the advisability of having the extruded disc surgically removed. Associate Professor McGill on the other hand considered that pathology to be nothing more than normal degenerative change commonly seen in the spine when there is no suggestion of injury. In his opinion absent radiculopathy, that pathology was of no significance.
Did Mr Houssenloge fail to undertake the RTW program?
Mr Houssenloge contends that he attended work on 2 and 3 July 2012 and thus he had not failed to undertake the rehabilitation program issued on 27 June 2012 — the 5th RTW plan — and therefore the precondition to the exercise of the power to suspend his rights to compensation under s 37(7) of the Act cannot be exercised.
Australia Post contends Mr Houssenloge did not undertake the 5th RTW plan. It argues that in the context of s 37(7) of the Act — “refuses or fails … to undertake a rehabilitation program” — the word undertake is not synonymous with “commence”, citing in support Ismailjee and Australian Postal Corporation [1995] AATA 555.
There is nothing to suggest that the word “undertake” as used in s 37(7) is not an ordinary English word or one that carries any technical or special meaning. While it is useful to consult dictionaries to ascertain the meaning of the word “undertake”, ultimately its meaning as used s 37(7) is a matter for the tribunal’s “understanding of the sense in which words are currently used” (NSW Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation [1956] HCA 80; (1956) 94 CLR 509 at 514).
The Macquarie Dictionary includes these definitions of “undertake”:
1to take on oneself (some task, performance, etc.); take in hand; essay; attempt.
2to take on oneself by formal promise or agreement; lay oneself under obligation to perform or execute.
The Oxford English Dictionary Online ( includes these definitions:
4. (a) To take upon oneself; to take in hand
8. To enter upon, commit oneself to, an enterprise
The Collins Australian Dictionary sixth edition offers this definition:
To contract to or commit oneself to (something) or (to do something) etc.
As is apparent the word “undertake” carries a number of possible meanings, which as submitted for Mr Houssenloge, include “to commence or to attempt”. While not expressly stated, one of the objects of the Act is the rehabilitation of injured employees through participation in rehabilitation programs. The interpretation favoured by Mr Houssenloge would limit the operation of s 37(7) to circumstances where the employee fails or refuses to commence a rehabilitation program the subject of a determination made under s 37(1). In my opinion in the context of s 37(7) “undertake” should be given the broader meaning of “to do” or “to commit to” because this would promote the apparent purpose of the provision and, as instructed by s 15AA of the Acts Interpretation Act 1901 (Cth), should be preferred over the meaning favoured by Mr Houssenloge.
The 5th RTW plan ran for the period 28 June 2012 to 12 August 2012. Mr Houssenloge attended work for two days in that period. Adopting the above interpretation of the s 37(7) I find that Mr Houssenloge did not commit himself to the program by making a genuine attempt to complete it. In my view, his show of doing so was disingenuous. This is demonstrated by the fact that he was willing and able to commit himself to his club barbecue duties but his employment efforts were, by comparison, feeble. I therefore find that he failed to undertake the subject rehabilitation program.
Did Mr Houssenloge have a reasonable excuse for failing to undertake the rehabilitation program?
Whether the excuse proffered by Mr Houssenloge for not undertaking the 5th RTW plan was reasonable must be objectively assessed. That assessment requires the decision-maker to “... at least consider the circumstances surrounding the employee’s failure or refusal to undertake a rehabilitation program and to evaluate what is reasonable in the circumstances”: Pascoe v Australian Postal Corporation [2004] FCAFC 4 at [20]; Australian Postal Corporation v Forgie [2003] FCAFC 223 at [40]. The focus of that assessment must be on the proffered excuse and not on the “reasonableness of the program itself”: Pascoe at [21].
Mr Houssenloge proffered as his excuses for failing to undertake the rehabilitation program: (i) that he had been certified unfit to work by his treating doctor, and (ii) that on previous occasions when he attempted to return to work he had aggravated his back injury. He submits that in circumstances where he was confronted with conflicting medical opinion about his fitness for work it was reasonable that he elected to follow the advice given by his GP. While he accepted that the work under the rehabilitation program was not arduous, he claims it nonetheless aggravated his back condition and caused him to experience significant pain.
Australia Post contends that the claim made by Mr Houssenloge of suffering disabling pain on each occasion he attempted to return to work cannot be accepted given the “benign” nature of the rehabilitation program and his proven ability to undertake more physically demanding activities outside work. Australia Post submits that Mr Houssenloge’s credit is in issue, pointing to, among other things, his claim, which it characterises as “bordering on lunacy”, that the 7.5 kilometre drive to work at North Ryde could take up to 45 minutes. Further Australia Post contends that it is not open to Mr Houssenloge to “hide behind” the opinion of his treating doctor in circumstances where his doctor was reliant on his self-report and the truthfulness of that report is in question.
Central to the reasonableness or otherwise of the excuses proffered by Mr Houssenloge is the veracity of his claim that each time he returned to work he experienced debilitating lower back pain. The evaluation of that claim is difficult given that it cannot be tested by an objective measure or tool. While it is possible that on returning to work Mr Houssenloge experienced some pain, for the reasons that follow, I think it improbable that he experienced pain of such severity that he was forced to stop work.
First, the weight of expert opinion is that the injury caused Mr Houssenloge to suffer a muscular sprain that in the normal course should have resolved within a matter of months. Associate Professor McGill and Dr Machart believe that the absence of any sign or symptom of radiculopathy to be inconsistent with Mr Houssenloge’s report of consistent and unremitting pain following injury. Associate Professor McGill provided a reasoned and plausible explanation for his opinion that, in the absence of radiculopathy, the pathology revealed on MRI was not significant and unlikely to account for Mr Houssenloge’s reported symptoms. Dr Collins on the other hand was unable to offer an explanation for the absence of radicular symptoms and Mr Houssenloge’s report of on-going pain since injury. His opinion that the pathology revealed on MRI was suggestive of something sinister rests heavily on Mr Houssenloge’s self-report.
Second, as conceded for Mr Houssenloge, on each occasion he attended work the type of work he performed was of a light nature. The tasks allocated, hours worked or travelling time apparently made little difference to Mr Houssenloge’s reported inability to continue on account of the pain. For example, on 16 April 2012 he claimed he was unable to continue on account of the pain after working two hours a day, over three consecutive days, the first day being devoted to training and induction. He made the same claim on 26 June 2012 after a single day at work spent in training and induction sessions and undertaking some administrative work, which according to the unchallenged evidence of Australia Post rehabilitation provider, Alexandra Papoliditis, consisted of diary filing: putting two sheets of paper into files. While Associate Professor McGill and Dr Collins disagree on the significance of the pathology revealed on MRI, they agree that Mr Houssenloge was capable of performing the duties allocated under Stage 2 of the plan ― the most physically demanding tasks allocated to Mr Houssenloge after the injury.
Third, in his role with the club barbeque, throughout much of the period covered by the rehabilitation program, Mr Houssenloge was performing tasks demonstrably more taxing and arduous than those allocated at any stage under the rehabilitation program. In that role Mr Houssenloge was required to stand for three hours, twist from side to side, pick up items from the ground and carry items in excess of the two kilogram weight limit imposed by his doctor. Even if it is accepted that he received some assistance in performing those tasks and “paid for it over the next week”, the evidence nonetheless indicates he was able to perform those tasks apparently without incident or the need to seek medical treatment. It is laudable that Mr Houssenloge would seek to maintain an active involvement in his son’s sporting activities but it does not explain away the discrepancy between his proven ability to do so and his apparent inability to undertake the tasks allocated under the rehabilitation program.
Fourth, while I accept that the perception of pain is subjective and pain tolerances can vary widely between individuals, Mr Houssenloge’s proven ability to continue to operate the weekly club BBQ after the injury is not suggestive of a person with a low pain threshold.
While it is improbable that on each occasion Mr Houssenloge returned to work he was unable to continue on account of the pain, the question posed by the current application is whether his claim of being unable to continue after 3 July 2012 on account of the pain can be accepted.
It will be recalled that the 5th RTW plan required Mr Houssenloge to move to Stage 2 in the week commencing 2 July 2012. While the tasks allocated to Mr Houssenloge were identical to those under Stage 1 ― face up, LCOA sorting and culling ― the hours he was required to work had been doubled (from two to four per day) and the weight restriction lifted (from two to five kilograms). Mr Houssenloge’s evidence was to the effect that the work was demanding although, as he conceded, when “after five minutes” he found he could not undertake a particular task ― sorting overseas mail and local mail ― he was taken off that task.
Both parties cite Dr Lim’s opinion as support for their respective positions about the reasonableness or otherwise of Mr Houssenloge’s excuse for not returning to work after 3 July 2012. Australia Post points to Dr Lim’s decision on 20 June 2012 to certify Mr Houssenloge fit for suitable duties to 4 July 2012 as evidence that his patient was capable of undertaking the rehabilitation program. Mr Houssenloge on the other hand contends that Dr Lim certified him fit to work on that occasion because he was “scared off, and not prepared to argue with [Associate Professor McGill]”. Furthermore he points out that at no stage did Dr Lim certify him fit to work four hours per day or lift weights of up to five kilograms, as required under Stage 2 of the 5th RTW plan. He also submits that by 9 July 2012 Dr Lim had revised his opinion and concluded that he was totally unfit for work.
Dr Lim has not prepared a report on Mr Houssenloge’s fitness and his clinical notes produced in these proceedings extend only to 8 May 2012. The basis for his opinion reached on 9 July 2012 that his patient was unfit to return to work, is unknown. No doubt that opinion was based at least in part on Mr Houssenloge’s report of his experience of returning to work on 25 and 27 June and 2 and 3 July. There is no reliable evidence about what Mr Houssenloge told Dr Lim about those days is unknown. Whether he told Dr Lim, as he had reported to his manager on 4 July 2012, that he had been up all night with a sore neck, is unknown. The certificate issued by Dr Liang on 5 July 2012 makes no mention of a neck problem and his notes of that consultation were not produced in these proceedings.
I accept that Mr Houssenloge preferred the opinion of his treating doctor over a conflicting medical opinion. In some circumstances, it may constitute a reasonable excuse for a worker to act on the advice of his or her own GP rather than that of another physician. But not if the patient has procured the opinion with a false or misleading history, especially one dependent on reported symptoms rather than objectively observable signs. Whether Mr Houssenloge’s reliance on Dr Lim’s advice constitutes a reasonable excuse for not undertaking the 5th RTW plan turns on the accuracy of the history given to Dr Lim. While there is no direct evidence that Mr Houssenloge exaggerated his symptoms and gave Dr Lim an inaccurate history, having regard to the evidence as a whole, the irresistible inference is that he did so. Certainly there is nothing in the medical records produced from Dr Lim or his medical practice that indicates that Mr Houssenloge ever mentioned his ability to operate the club barbecue, nor is there any report from Dr Lim or any other doctor that includes this vital information. Nor is it mentioned in the statements Mr Houssenloge prepared for these proceedings.
Mr Houssenloge gave the consultants who examined him incomplete histories, omitting to inform them about his barbecue activities. Nevertheless, the combination of objective radiological evidence and his own reports of symptoms (which did not include radiculopathy) satisfied two of them that his injury was not as bad as he claimed.
Serious consequences flow for an employee when the pre-conditions for the operation of s 37(7) are satisfied. This means that any decision about ‘reasonable excuse’ for not undertaking a rehabilitation program must be carefully weighed and must not be pre-emptory. Having carefully examined the evidence I am not satisfied as claimed that Mr Houssenloge experienced a level of pain beyond reasonable pain tolerances on returning to work, including under the 5th return to work plan. Nor am I satisfied that he gave Dr Lim an accurate history. For these reasons I find that he did not have a reasonable excuse for not undertaking the rehabilitation program.
The decision under review must be affirmed.
I certify that the preceding 72 (seventy -two) paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton ........................................................................
Associate
Dated 20 March 2014
Date(s) of hearing 17 and 18 December 2013 Solicitors for the Applicant Ian Collins Solicitor Counsel for the Respondent Matthew Gollan Solicitors for the Respondent DLA Piper Australia
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