McGuinness and Comcare
[2006] AATA 242
•15 March 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 242ADMINISTRATIVE APPEALS TRIBUNAL Nº V2005/206, V2005/345
GENERAL ADMINISTRATIVE DIVISION
Re: RAYE ANN McGUINNESS
Applicant
And:COMCARE AUSTRALIA
Respondent
DECISION
Tribunal: G.D. Friedman, Senior Member
Date:15 March 2006
Place:Melbourne
Decision: Application V2005/206: The Tribunal affirms the decision under review.
Application V2005/345: The Tribunal affirms the decision under review.
(sgd) G.D. Friedman
Senior Member
COMPENSATION - whether return to work program was a rehabilitation program - refusal to undertake rehabilitation program - whether reasonable
Safety, Rehabilitation and Compensation Act 1988 ss 4, 36(1), 36(8), 37(1), 37(3) and 37(7)
ReOellering and, Department of Health, Housing and Community Services (1992) 16 AAR 198
Re Parsons and Telstra Corporation Limited (2003) AATA 224Re Wilkinson and Australian Postal Corporation (1998) AATA 849
REASONS FOR DECISION
15 March 2006 G.D. Friedman, Senior Member
1. Raye McGuinness was born on 27 September 1956. She joined Centrelink in 1993 and from 1997 worked as an investigator in the debt recovery area. On 2 July 2004 she lodged a claim for compensation for depression as a result of being verbally abused by a team leader and then trying to resolve the matter. Comcare (the respondent) accepted liability for adjustment reaction with depressive reaction. She ceased work on 2 May 2004.
2. After assessing medical reports the respondent directed Ms McGuinness to commence a graduated return to work program on 11 January 2005 (Application V2005/206) which was amended to 15 February 2005 (Application V2005/345). She failed to commence the program and on 7 March 2005 Centrelink suspended her compensation entitlements. She has sought review of this decision on the basis that she and her treating psychiatrist considered her to be unfit to return to work.
3. The issues before the Tribunal are whether the return to work program was a rehabilitation program and, if so, whether the decision by Ms McGuinness to refuse to undertake the program was reasonable.
WAS THE RETURN TO WORK PROGRAM A REHABILITATION PROGRAM?
4. Sections 36 and 37 of the Safety, Rehabilitation and Compensation Act 1988 (the Act) provide:
36
(1) Where an employee suffers an injury resulting in an incapacity for work or an impairment, the rehabilitation authority may at any time, and shall on the written request of the employee, arrange for the assessment of the employee's capability of undertaking a rehabilitation program.
...
(8) Where an examination is carried out, the person or persons who carried out the examination shall give to the rehabilitation authority a written assessment of the employee's capability of undertaking a rehabilitation program, specifying, where appropriate, the kind of program which he or she is capable of undertaking and containing any other information relating to the provision of a rehabilitation program for the employee that the rehabilitation authority may require.
37
(1) 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 and, where the authority so determines, it may make arrangements with an approved program provider for the provision of a rehabilitation program for the employee.
...
(3)In making a determination under subsection (1), a rehabilitation authority shall have regard to:
(a) any written assessment given under subsection 36 (8);
(b)any reduction in the future liability to pay compensation if the program is undertaken;
(c) the cost of the program;
(d) any improvement in the employee's opportunity to be employed after completing the program;
(e) the likely psychological effect on the employee of not providing the program;
(f) the employee's attitude to the program;
(g) the relative merits of any alternative and appropriate rehabilitation program; and
(h) any other relevant matter.
...
Section 4 of the Act provides that:
rehabilitation program includes medical, dental, psychiatric and hospital services (whether on an in-patient or out-patient basis), physical training and exercise, physiotherapy, occupational therapy and vocational training.
5. In Re Wilkinson and Australian Postal Corporation (1998) AATA 849 the Tribunal held at paragraph 88:
In the Tribunal's opinion, a rehabilitation program in the context of the Act is a plan for the restoration of an employee, who has suffered a disease or injury, to optimum health and working capacity given any limitations imposed by their condition. Such a plan can include medical treatment, broadly defined, therapy, and physical or vocational training.
In ReOellering and, Department of Health, Housing and Community Services (1992) 16 AAR 198 the Tribunal identified rehabilitation program as:
… a plan, policy, list or agenda which was formulated for the purpose of restoring the applicant to her greatest potential physically, mentally, socially and vocationally...
6. In the matters under review the Tribunal takes into account that the return to work plan produced by Centrelink and sent to Ms McGuinness on 27 January 2005 includes a declaration that the plan is a determination under s 37 of the Act, and follows an assessment under s 36 of the Act. Although there is reference only to the first two weeks, the plan states that it is the basis of the rehabilitation program. The plan includes long-term goals for full-time employment and interim goals for a graduated return to work, modified duties and reduced hours, and was discussed with her on 5 January 2005. It lists the specific activities proposed for weeks one and two (four hours per day on two days per week), including introductory discussions, workplace orientation and the commencement of training. The plan also includes discussion with the rehabilitation provider (Dr P. Cotton, occupational and clinical psychologist) and the rehabilitation case manager.
7. Although Dr Cotton subsequently ceased his involvement as rehabilitation case manager, the Tribunal is satisfied from his letter dated 25 January 2005 to the rehabilitation case manager that he was aware of the treatment arranged by the treating psychiatrist (Dr G. Hogan) for Ms McGuinness. Dr Cotton took into account her ongoing treatment when contributing to the return to work program. The Tribunal concludes that at the meeting on 5 January 2005 Ms McGuinness was consulted about alternative duties contained in the program.
8. The Tribunal finds that the rehabilitation authority has had regard to the matters contained in s 37(3) of the Act. The return to work program aims to restore Ms McGuinness to her greatest potential, so it satisfies the criteria for rehabilitation program for the purposes of the Act.
WAS THE DECISION TO REFUSE TO UNDERTAKE THE PROGRAM REASONABLE?
9. Section 37(7) of the SRC Act provides:
…
(7) Where an employee refuses or fails, without reasonable excuse, to undertake a rehabilitation program provided for the employee under this section, the employee’s rights to compensation under this Act, and to institute or continue any proceedings under this Act in relation to compensation, are suspended until the employee begins to undertake the program.…
…
10. Ms McGuinness told the Tribunal that she had been working in the Prosecutions team and in February 2003 she was asked to join a newly-created cash economy team that consisted of mainly non-Centrelink personnel. She said that the team did not work well together, and the team leader developed a negative attitude towards her. She said that this escalated and in April 2003 the team leader became abusive and accused her of undermining her authority. Ms McGuinness stated that she asked Human Resources to investigate the poor relationship, but the matter was not resolved. She said that from about July 2003 she was ostracised by other team members and moved out of the team. Her attempts to transfer to another area of Centrelink were unsuccessful.
11. Ms McGuinness described the work environment as hostile and unfriendly. She became distressed by this and was ignored because she was perceived as a trouble-maker. She stated that in October 2003 her doctor referred her to a psychologist. Ms McGuinness said that by June 2004 she could not face the prospect of returning to work, and her prescribed medication caused side-effects and gastric problems. She was referred to a psychiatrist and commenced therapy for depression. She said that her symptoms have persisted and she feels anxious with people. She emphasised that she is unable to resume work and has frequent panic attacks, so she is unable to drive a motor vehicle, take public transport or visit shopping centres.
12. In January 2005 Ms McGuinness attended meetings with Centrelink but found the meetings distressing. She stated that because of her ongoing psychological problems the return to work program involving debt recovery at the Box Hill office was unrealistic and impractical. This is because she had lost all confidence, the ability to concentrate, and was tearful. She also said that she was unable to drive there and would be unable to cope with public transport or people unknown to her in a large and unfamiliar office environment. Ms McGuinness stated that no-one from Centrelink bothered to discuss with her the difficulties involved in implementing the return to work program. She told the Tribunal that for these reasons she did not re-commence work.
13. Under cross-examination Ms McGuinness agreed that the program outlined for weeks one and two, involved meetings, discussions and computer set-up etc. that would not have been affected by a previous shoulder injury. She emphasised that her psychological state would have prevented her from undertaking any meaningful work. She stated that Centrelink had not considered the possibility of meeting her needs with respect to her limitations, and the location of her employment. She said that Centrelink had an obligation to formulate an acceptable program, and this had not occurred or been contemplated by Centrelink at any time. She agreed that any offer made by Centrelink would be stressful.
14. Ms McGuinness stated that her husband has been supportive, but that they had not discussed the possibility of him driving her to Box Hill to participate in the program. She denied that in February 2005 she was determined not to return to work in any circumstances. She said that she has scaled back her medical treatment activities, and her overall condition has improved slightly, although she remains unfit for work. Ms McGuiness claimed that she had been threatened with dismissal if she did not return to work.
15. Dr Hogan said that originally he believed Ms McGuinness was suffering from an adjustment disorder, but her condition deteriorated and he diagnosed depression. He referred to her intolerance to various types of medication, and said that in late 2004 or early 2005 she experienced panic attacks which restricted her ability to leave her house. Dr Hogan told the Tribunal that he would support a return to work program when Ms McGuinness showed sufficient improvement that would allow her to be re-introduced to the workplace. By early 2005 she had not made sufficient progress, and was in no position to consider working.
16. Dr Hogan said that the program planned for Ms McGuinness, involved debt recovery work, which was totally inappropriate and was beyond her capacity. He stated that Centrelink had not consulted her about the program, which added to her fears. He said that she was unfit to work under any circumstances. Under cross-examination Dr Hogan stated that there was no point in him discussing a return to work with her because of her depressed condition.
17. Dr Cotton said that Ms McGuinness was referred to him in August 2004 for implementation of a return to work program and rehabilitation support. He emphasised the importance of rehabilitation overlapping with treatment, but said that in this case Dr Hogan seemed to be concentrating on treatment and was not supportive of a return to work. Dr Cotton said he preferred the opinion from Dr V. Botvinik, an independent psychiatrist.
18. Dr Cotton explained that he attended a meeting at the Box Hill office of Centrelink on 5 January 2005 to discuss the return to work program with Ms McGuinness. On 25 January 2005 he sent a letter to Centrelink in which he referred to her ongoing psychiatric care and psychotherapy treatment, and noted Dr Hogan’s preference for initiating rehabilitation only when treatment had been concluded. However he said that he was preparing alternative duties similar to those discussed on 5 January 2005 and was encouraging her to return to work on 13 February 2005. Dr Cotton acknowledged that Ms McGuinness was reluctant to accept the program, and he believed she had lost confidence in him. He said that on 11 April 2005 he sent a letter to Centrelink formally ending his role. Under cross-examination he agreed that any proposal to place Ms McGuinness in the debt recovery area as part of a return to work program was not ideal. He also agreed that he preferred to devise a return to work program with the person’s active involvement.
19. In September 2004 Dr Botvinik diagnosed adjustment disorder with mildly anxious and depressed mood. He encouraged Ms McGuinness to continue treatment with Dr Hogan, and said that she would be fit for work within six to eight weeks. In January 2005 Dr Botvinik supported the return to work plan involving a gradual resumption of duties, on the basis that she would be away from her previous stressors and would have reassurance and encouragement from Dr Hogan. In August 2005 Dr Botvinik described Dr Hogan’s attitude towards Ms McGuinness even attempting to go back to the workforce as negative, and said that he always encouraged a gradual resumption of suitable duties under close supervision to build up confidence and self-esteem. In oral evidence Dr Botvinik acknowledged that when he saw Ms McGuinness in November 2004 she might have been suffering from major depression rather than an adjustment disorder. He agreed that any return to work involving debt recovery would be stressful.
20. Ms S. Hadya, a Centrelink officer who was Ms McGuinness’s rehabilitation case manager, told the Tribunal that she recognised that Dr Hogan’s preference was for treatment to be completed before any return to work. However she stated that she formulated the return to work plan in association with managers and medical professionals, particularly an independent psychiatrist such as Dr Botvinik, and took Ms McGuinness’s attitude into account. Ms Hadya said that she explained to Ms McGuinness that the plan involved work orientation in the first week, and that debt recovery was only an initial placement. Ms Hadya also said that every effort was made to locate Ms McGuinness in a suitable Centrelink office, taking into account transport and other considerations. She denied threatening to dismiss Ms McGuinness.
21. In Re Wilkinson the Tribunal concluded that the applicant had a reasonable excuse for refusing or failing to undertake the rehabilitation program because of a failure of the respondent to communicate properly with the applicant, and the shortcomings of the program. In Re Parsons and Telstra Corporation Limited (2003) AATA 224 the Tribunal found (at para 51) that the applicant …had already made up his mind that he was TPI [totally and permanently incapacitated] and with the collusion of Dr Johnston had made up his mind that that he was not going to work again with Telstra…
22. In the matters under review the Tribunal acknowledges that Ms McGuinness has a good work history and has been a conscientious and reliable Centrelink officer. Dr Hogan diagnosed depression and was clear in his opinion that she should not return to work before treatment had concluded. The Tribunal notes the oral evidence from Dr Botvinik in which he conceded that his earlier diagnosis of adjustment disorder might have been inaccurate. The Tribunal also takes into account that at the meeting on 5 January 2005 Ms McGuinness displayed signs of distress and anxiety when discussing a possible return to work. She was unhappy at the prospect of working at all on the basis that she could not cope, yet she received the return to work program in the mail without further consultation. Week two of the return to work plan included dual headsetting with staff in the debt recovery area at Box Hill, which would have been stressful for Ms McGuinness in her psychiatric state at the time, and with her difficulties regarding public transport.
23. On the other hand the Tribunal accepts that rehabilitation is part of the compensation scheme and that participants have obligations as set out in the Act. The Tribunal has accepted that the return to work plan was part of a rehabilitation program in which Centrelink was making an effort to restore Ms McGuinness’s health and working capacity. The program itself recognised the graduated nature of a return to work as it comprised four hours per day on two days during a two-week period. The first week included discussions with the rehabilitation provider and rehabilitation case manager about supporting the program, as well as discussion about incorporating Ms McGuinness’s work experience, knowledge and skill levels. This indicates that her progress and participation would be continually monitored in consultation with her.
24. The Tribunal notes that the program was introductory in nature and involved few actual tasks, which would have lessened any stress that Ms McGuinness might experience from a return to work. Each day’s schedule contained adequate opportunities for feedback, assessment of progress and discussion of difficulties that might arise. She seems to have interpreted Dr Hogan’s views on her fitness to work as a reason not to make any attempt to return to work. She had not brought the program to his attention or discussed the contents with him in any way. The Tribunal notes that she drove her car to see Dr Botvinik and to the 5 January 2005 meeting.
25. Debt recovery was not the most desirable area in which to commence the program, and Centrelink might have consulted more closely with Ms McGuiness after 5 January 2005 regarding matters such as transport to Box Hill and the implications of the program. On balance the Tribunal concludes that Centrelink made an effort to take her limitations and medical condition into account when formulating the rehabilitation program. The Tribunal is satisfied that the program incorporated sufficient monitoring and safeguards and was flexible enough to accommodate any difficulties that she might encounter in attempting to carry out any of the components of the program. She had adequate notice of the dates of the program, and would probably have been able to arrange for a family member to drive her to Box Hill.
26. In the entirety of the circumstances she had a responsibility to make an attempt to undertake the program, and her failure to do so was not reasonable. Under s 37(7) of the Act the Tribunal finds that Ms McGuinness refused or failed, without reasonable excuse, to undertake a rehabilitation program provided for her under the Act.
DECISION
27.Application V2005/206: The Tribunal affirms the decision under review.
Application V2005/345: The Tribunal affirms the decision under review.
I certify that the twenty-seven [27] preceding paragraphs are a true copy of the reasons for the decision of:
G.D. Friedman, Senior Member
(sgd) Lydia Zozula
Associate
Dates of hearing: 22 September 2005, 5 December 2005, 6 December 2005, 24 February 2006
Date of decision: 15 March 2006
Counsel for applicant: Mr M. Carey
Solicitor for applicant: Maurice Blackburn Cashman
Counsel for respondent: Mr J. Ferwerda
Solicitor for respondent: Dibbs Abbott Stillman
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