Michael Freeman and Fleetmaster Services Pty Ltd
[2013] AATA 38
[2013] AATA 38
Division GENERAL ADMINISTRATIVE DIVISION File Number
2011/0758
Re
Michael Freeman
APPLICANT
And
Fleetmaster Services Pty Ltd
RESPONDENT
DECISION
Tribunal Deputy President P E Hack SC
Date 25 January 2013 Place Brisbane (heard in Grafton) The decision is affirmed.
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Deputy President P E Hack SC
Catchwords
COMPENSATION – injury – failure or refusal to undertake rehabilitation program – right to compensation suspended – reasonable excuse – claimed allocated tasks unsuitable or caused pain – no particular skill required for allocated task – unreasonable refusal to participate in explanation of allocated task – no contemporaneous complaint of pain – not satisfied work undertaken caused pain – no explanation for subsequent failure to return to work – no reasonable excuse – decision affirmed
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth) s 37(7)
Cases
Pascoe v Australian Postal Corporation [2004] FCAFC 4; (2004) 77 ALD 464
REASONS FOR DECISION
Deputy President P E Hack SC
25 January 2013
Introduction
The applicant, Mr Michael Freeman, was a truck driver employed by the respondent, Fleetmaster Services Pty Ltd (Fleetmaster). In July 2010 Mr Freeman was injured at work and successfully applied for compensation from Fleetmaster. But then, on 18 November 2010, Fleetmaster made a determination that he had failed or refused, without reasonable excuse, to undertake a rehabilitation program provided for him. The consequence of that determination was that Mr Freeman's rights to compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act) were suspended.
Mr Freeman seeks a review of that determination.
Factual background
I do not understand what follows to be in issue. Mr Freeman was born in 1971. He left school at an early age and worked for a number of years as a farm labourer. In about 2001 he commenced working as a truck driver.
Fleetmaster trades as Jim Pearson Transport. It operates a very large fleet of trucks between Brisbane and Sydney and in northern New South Wales. At the time of these events it operated a depot at Grafton. That depot was inspected, in company with the parties, in the course of the hearing.
Mr Freeman was employed by Fleetmaster for a number of months during 2006 and returned to work there again in early June 2010. He was employed driving a "B-double" i.e. a prime mover with two attached trailers, one holding 14 pallets and the other 22 pallets. His task was to deliver goods to supermarket warehouses. The trailers have a rigid frame, and sides comprising flexible curtains which can be moved horizontally to enable access to the load. The curtains have straps which are tightened using a ratchet.
On 30 July 2010 Mr Freeman was securing the curtains on a trailer when the ratchet broke without warning. He fell backwards onto the concrete floor of the depot but was able to cushion his fall using his right hand. He felt intense and sharp pain in that hand on impact. He completed his tasks for that day.
The following day Mr Freeman attended the Grafton Base Hospital where x-rays of his right hand were taken. It was thought that there was a sprain to the right wrist. That arm was put in a half cast and Mr Freeman was given some time off work. At least by 3 August 2010 Fleetmaster had prepared a rehabilitation program to assist in Mr Freeman's return to work. It contemplated his return to work on that day[1] on what was described as "suitable duties" with a return to pre-injury duties by 12 August 2010.
[1]It is apparent that the reference to 3 July 2010 on page 17 of exhibit 1 is an error and ought read 3 August 2010.
Mr Freeman continued driving trucks but over less demanding distances. He says that during this period his hand and arm kept swelling up and caused him pain.
Mr Freeman saw Dr Alex Jovanovic, an orthopaedic surgeon, on 20 August 2010. His report referred to x-rays and CT scans of Mr Freeman’s wrist which[2],
…failed to show any significant pathology apart of [sic] the non-united tubercule fracture of the scaphoid in the past.
Dr Jovanovic was of the opinion that Mr Freeman "most likely" had an undisplaced scaphoid fracture and referred him for physiotherapy.
[2] Exhibit 1, page 55.
At the same time, Mr Freeman was referred by Fleetmaster to Dr John Bradshaw, a general practitioner. The evidence is not entirely clear however I infer that Dr Bradshaw was retained by Fleetmaster to deal with injuries sustained by its employees in the course of their employment and with rehabilitation from those injuries. For completeness I note that Mr Freeman's usual general practitioner was Dr Paul Fowler however he was not involved in the treatment of this injury until a much later stage.
Mr Freeman lodged a claim for compensation on 16 August 2010. Fleetmaster, which was a licensed self-insurer under the SRC Act, accepted liability to pay compensation in accordance with that Act on 23 August 2010 for an injury described as scaphoid fracture.
Mr Freeman continued to work, albeit undertaking light duties, until 23 September 2010. On that day, Mr Freeman saw Dr Bradshaw who certified him as being unfit for any work from 23 September 2010 to 28 September 2010[3]. Then on 30 September 2010 Dr Bradshaw certified Mr Freeman as being unfit for any work from that day to 13 October 2010[4]. On 18 October 2010 Dr Bradshaw again certified Mr Freeman as being unfit to work between 13 October 2010 and 20 October 2010 and fit for suitable duties thereafter[5] but on a subsequent visit on 20 October 2010 Dr Bradshaw extended the period during which Mr Freeman was unfit for work to 30 October 2010.[6]
[3] Exhibit 1, page 63.
[4] Exhibit 1, page 78.
[5] Exhibit 1, page 95.
[6] Exhibit 1, page 98.
Mr Freeman was referred to Dr John Corbett, a consultant neurologist, in late October 2010. His report of 28 October 2010 described the neurological findings as normal and concluded that Mr Freeman's right wrist symptoms were likely to be orthopaedic.
On 22 October 2010 Fleetmaster referred Mr Freeman to Phoenix Workplace Health Pty Ltd (Phoenix), an approved rehabilitation program provider, to conduct an assessment of his capability to undertake a rehabilitation program. That assessment was made. It concluded[7] that Mr Freeman would benefit from the implementation of a rehabilitation program and recommended that such a program be prepared for him.
[7] Exhibit 1, page 135.
In the meantime, Mr Freeman had returned to Dr Bradshaw's rooms on 29 October 2010. On that occasion he was seen by a locum, Dr Bruce Wakefield. Dr Wakefield certified him as being unfit for work from 29 October 2010 to 30 November 2010.[8]
[8] Exhibit 1, page 117.
On 2 November 2010, and at the request of Fleetmaster, Mr Freeman was seen by Dr Brett Halliday, a consultant orthopaedic surgeon, for the purposes of a medico-legal report. That doctor concluded that Mr Freeman's injury had not stabilised[9]. In response to the question whether Mr Freeman could undertake suitable duties Dr Halliday said,
Mr Freeman had been driving a commercial truck until one month ago. This aggravated his symptoms. He has quite significant pain in the region and it is unwise to have him driving a commercial vehicle given the level of his analgesic requirements and the pain he is suffering in his hand. He is suited to work that does not involve the use of the right hand in the form of light duties. He could undertake this full-time.
[9] Exhibit 1, page 140.
Dr Halliday's report was provided to Dr Jovanovic who agreed "100%" with Dr Halliday's assessment. He continued,
It seems to me that we completely concur on presentation and findings of Michael Freeman.
On the basis of the report from Dr Halliday Fleetmaster concluded that Mr Freeman was capable of undertaking suitable duties, described as "no use of right hand" and "no driving a commercial vehicle", in the week commencing 15 November 2010 between 8am and 2pm increasing to 8am to 3pm in the week thereafter. Effect was given to that conclusion by two determinations made pursuant to s 37(1) of the SRC Act.
Mr Freeman attended Fleetmaster’s Grafton depot on 15 November 2010. The events of that day are controversial and are dealt with in greater detail below. It will suffice for present purposes to say that Mr Freeman left the depot and went home prior to the scheduled end of the day and did not return thereafter. In light of that Fleetmaster determined on 18 November 2010 that he had failed, without reasonable excuse, to participate in a rehabilitation program. That determination was affirmed on reconsideration on 21 December 2010. In these proceedings Mr Freeman seeks a review of the reconsideration decision.
The legislation and its application
Rehabilitation is a considerable focus of the SRC Act; all of Part III of the Act deals with it. In particular, Division 3 of Part III of the SRC Act deals with rehabilitation programs, a term defined in s 4(1) of the SRC Act as including,
…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.
By virtue of s 36(1) of the SRC Act, where an employee suffers an injury resulting in an incapacity for work a rehabilitation authority may arrange for the assessment of the employee's capability of undertaking a rehabilitation program. Fleetmaster was a rehabilitation authority. Its referral of Mr Freeman to Phoenix was undertaken in reliance on s 36(1) of the SRC Act.
Section 37(1) of the SRC Act permits a rehabilitation authority to 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. A rehabilitation authority that makes a determination under s 37 is obliged by s 38(1) of the SRC Act to serve a notice on the employee concerned setting out the terms of the determination and the reasons for it as well as a statement to the effect that an employee dissatisfied with the determination may request Comcare for a review of the determination. Additionally, and by operation of s 62(2) of the SRC Act, the employee concerned, described as "the claimant" in the sub-section, may, if dissatisfied with the determination, request reconsideration of it. A decision on reconsideration is a "reviewable decision" i.e. one capable of being reviewed in the Tribunal.
Mr Freeman did not exercise either of these options; instead he declined to participate in the program. Thus s 37(7) of the SRC Act becomes relevant. It provides:
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.
The nature of the task that I am obliged to undertake in the present proceedings has been authoritatively determined by the decision of the Full Court in Pascoe v Australian Postal Corporation[10]. In that case the Tribunal was held not to have considered whether the applicant had a reasonable excuse for his failure to undertake the rehabilitation program but had instead considered whether the program was an appropriate one for him. It is not now open to Mr Freeman to challenge the appropriateness of the rehabilitation program provided by Fleetmaster (and he does not seek to do so). Pascoe decided that,
…when considering whether an employee has a reasonable excuse for failing to undertake a rehabilitation program, the program in question is to be taken to be appropriate for the employee.[11]
Their Honours subsequently said[12] in relation to the Tribunal's decision,
In our view, the AAT, standing in the shoes of Australia Post, did not evaluate the reasonableness of any excuse presented to explain Mr Pascoe's failure to undertake the program devised for him, rather it focused on the reasonableness of the program itself. It was not its role to do so. The AAT should have taken the program as having been provided to the employee without challenge following a determination, and assessed the reasonableness of Mr Pascoe's excuse, if he had one, for failing to undertake that particular program.
[10] [2004] FCAFC 4; (2004) 77 ALD 464 (Hill, Marshall & Finkelstein JJ).
[11] At para [14].
[12] At para [21].
Did Mr Freeman have a reasonable excuse
It is now necessary to consider in greater detail the events of 15 November 2010. Those events were the subject of evidence from Mr Freeman, Mr Michael Durbin, a mechanic at the Fleetmaster Grafton depot, and Mr John Geary, the manager of that depot and the person responsible for supervising Mr Freeman. I should say immediately that I see no reason to doubt the accuracy and reliability of the evidence of Mr Durbin and Mr Geary. They both impressed me as being reliable historians and their evidence was supported by logic and common sense. I lack similar confidence in the evidence of Mr Freeman for reasons that will emerge.
There is no doubt that Mr Freeman was given duties to perform in and around the depot on his return to work on 15 November 2010. Mr Freeman's case is that the duties he was given to perform,
… were unsuitable as they either required use of both his hands or were duties that were unsuitable due to his level of training and experience[13].
Consequently, so Mr Freeman says, he was unable to perform those duties satisfactorily and suffered an exacerbation of the pain in his arm requiring him to cease work. That, he says, provided him with a reasonable excuse for his failure or refusal to participate in the rehabilitation program that Fleetmaster had determined he should undertake.
[13] Applicant’s Statement of Facts, Issues and Contentions (Exhibit 10), paragraph 11.
As will appear, I do not accept that Mr Freeman had a reasonable excuse. Nor do I accept that the duties he was required to perform caused an exacerbation of his pain. The contemporaneous documents tell against acceptance of such a proposition. I consider instead that the likelihood is that Mr Freeman was simply not interested in undertaking tasks allocated to him. I need not decide whether, as Mr Clark, counsel for Fleetmaster, suggested, he regarded the tasks as being beneath him.
There is agreement that Mr Freeman was asked to undertake two tasks, data input and checking tyre pressures. Mr Freeman says that, additionally, he was asked to undertake a further task involving the fixing of curtains on trailers. As to that latter task, both Mr Durbin and Mr Geary deny that he was asked to perform any task involving the fixing of curtains. I accept their evidence and reject that of Mr Freeman.
The data input task appears to have been the first one which Mr Freeman was asked to undertake. It involved him in using a computer and keyboard to input drivers’ logs onto the computer. Mr Geary says that he asked Mr Freeman to undertake the task but that he refused, saying that he did not know how to do it. Mr Geary offered to show him what needed to be done, which was not complicated and which could be explained in 10 to 15 minutes, but Mr Freeman simply refused to even participate in that.
It was, in my view, unreasonable on the part of Mr Freeman to refuse to participate in this task. It is not to the point that he lacked computer skills, he refused even to participate in any explanation of the task. The evidence of Mr Geary satisfies me that the task was uncomplicated and needed no particular skill. What was required could have been readily conveyed to Mr Freeman had he wished to participate; he chose, unreasonably, not to do so. It was not open to Mr Freeman to simply refuse to receive training in a simple task.
The task of checking tyre pressures was quite basic. It involved the use of the gauge, capable of being used with one hand, to read tyre pressures and, where necessary, the use of a hose to inflate the tyre, again a task capable of being performed with one hand. It may well have been the case that Mr Freeman was required to use his right, injured, hand to perform these tasks but I do not accept that he was ever required to use that hand for weight-bearing tasks. As the medical evidence demonstrated[14], it was in Mr Freeman's interests to make some use of his injured hand; it was not as if the limb was hanging loosely by his side incapable of any use whatsoever.
[14] See e.g. exhibit 11, 30 November 2010.
Mr Durbin gained the impression from Mr Freeman that "he just did not want to be there". I see no reason to doubt that observation. It is consistent with the tone of subsequent correspondence from Mr Freeman to Fleetmaster, referred to below.
After a relatively short period of time Mr Freeman left the depot and went home. As I have said, he did not ever return.
Mr Freeman says that the tasks that he was required to perform caused him pain in his right wrist. I am not satisfied that that was so or, if there was any pain, that it was of any particular moment. On 16 November 2010, the day following the abortive return to work, Mr Freeman signed two letters[15] addressed to Fleetmaster, one composed with the assistance of a friend with some apparent expertise in compensation matters. The letters generally complain of his treatment at the hands of Fleetmaster. Amongst other things, the letters assert that Fleetmaster's employees had bullied Mr Freeman and that he had spoken to a solicitor and could not return to the depot without clearance from his own general practitioner, Dr Fowler. On that point one letter says,
I am writing to advise you that I have spoken to a solicitor and that I cannot return to the depot without the medical clearance from Dr Fowler my own GP, and not the doctors that you have forced me to go to.
There is only passing reference in either letter to the tasks undertaken by Mr Freeman on 15 November 2010. That reference is in these terms,
But I am not able to just go and sit at work and do nothing. Even though your compensation people say that I am able to do computer work and admin work I can't do this. I do not have any computer skills and office work skills and I only completed year 8 at school. But I am a good truck driver.
[15]Exhibit 1, pages 170 and 171. The letter at page 170 bears the annotation that it was received on 26 November 2010. That at page 171 was seemingly sent and received on 16 November 2010; it is referred to in an internal Fleetmaster e-mail of that date at page 172 of exhibit 1.
What is absent from both of these letters is any complaint that the work undertaken the previous day had caused Mr Freeman any pain or discomfort. I find it inconceivable that Mr Freeman would not have mentioned in one or other of those letters that he had experienced pain and discomfort the previous day had that been the case.
Mr Freeman saw Dr Fowler on 22 November 2010. This was the first occasion on which Dr Fowler had been consulted regarding this injury. Dr Fowler’s clinical notes from this visit are in evidence. Under the heading "Reason for visit" the notes record "Right Wrist pain". Absent from the notes is any reference to difficulties in undertaking work tasks one week earlier. Again, it might have been expected, had Mr Freeman experienced pain and discomfort as he now says, that some note would have been made by Dr Fowler of such a complaint. Following this visit Dr Fowler forwarded a report to Fleetmaster at its request. In response to a request to review the return to work plan the report noted,
His current return to work restriction of limited use of his right hand seem [sic] appropriate. Note that he is left handed.
Mr Freeman again saw Dr Fowler on 30 November 2010. The doctor's notes of that visit record Mr Freeman's decision "not to return to restricted duties". Again, there is no mention of pain or discomfort as a result of the work on 15 November 2010.
This evidence leads me to conclude that I am not satisfied that the work undertaken by Mr Freeman on 15 November 2010 caused him pain as he now asserts. In saying that I have not overlooked the evidence of Mr Geary that Mr Freeman, at the time of his departure on that day, spoke of being in pain. If it were the case that Mr Freeman was then in pain, I am not satisfied that it was caused by the work that he had undertaken, much less that it prevented him from undertaking the tasks allocated to him. Moreover, Mr Freeman did not return the following day or at all. There is no reason proffered for that failure.
It follows that I do not regard Mr Freeman as having a reasonable excuse for his failure or refusal to participate in the rehabilitation program. The decision under review will be affirmed.
I should mention that the parties called two medical specialists – Mr Freeman called Dr James Bodel, a consultant orthopaedic surgeon, and Fleetmaster called Dr Neil McGill, a consultant rheumatologist. I have no reason to doubt their evidence however I did not find it of any assistance in deciding the issues I had to consider.
I certify that the preceding 40 (forty) paragraphs are a true copy of the reasons for the decision herein of Deputy President PE Hack SC
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Associate
Dated 25 January 2013
Date(s) of hearing 10 & 11 December 2012 Counsel for the Applicant Mr L Robison Solicitors for the Applicant Schofield King Lawyers Counsel for the Respondent Mr CJ Clark Solicitors for the Respondent Sparke Helmore
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